Syed MUREED ABBAS SHAH BUKHARI vs THE STATE and 3 others
This matter comes before the Peshawar High Court through a petition filed under section 561-A of the Code of Criminal Procedure 1898, seeking the quashment of F.I.R. No. 846 dated 5-12-2011 registered under section 188 of the Pakistan Penal Code 1860 read with section 16 of the Maintenance of Public Order Ordinance, at Police Station Cantt. D.I. Khan for taking out an alleged unapproved procession. The core legal question revolves around whether a court or police can initiate proceedings under section 188 of the Pakistan Penal Code 1860 without a written complaint from the concerned public servant as mandated by law. The court held that under section 195(1)(a) of the Code of Criminal Procedure 1898, no court can take cognizance of an offence under section 188 of the Pakistan Penal Code 1860 except upon a written complaint by the public servant concerned or their superior, and since the F.I.R. was registered merely on a police report by an SHO without such written complaint, the registration of the F.I.R. and its continuation is unlawful. Consequently, the petition was accepted and the F.I.R. was quashed.
- Can a court take cognizance of an offence under section 188 of the Pakistan Penal Code 1860 without a written complaint by the concerned public servant?
- Is an FIR registered under section 188 of the Pakistan Penal Code 1860 liable to be quashed if initiated on a police report rather than a written complaint under section 195(1)(a) of the Code of Criminal Procedure 1898?
- Section 561-A, Code of Criminal Procedure 1898
- Section 188, Pakistan Penal Code 1860
- Section 16, Maintenance of Public Order Ordinance
- Section 195(1)(a), Code of Criminal Procedure 1898
' SYED SAJJAD HASSAN SHAH, J.---Through the instant petition under section 561-A, Cr.P.C., the petitioner Syed Murid Abbas Shah Bukhari seeks quashment of F.I.R. No,846 dated 5-12-2011 registered under section 188, P.P.C. Read with section 16, M. P.O at Police Station Cantt. D.I. Khan.
2. Briefly stated the facts of the case are that on the report of Muhammad Nawaz Khan, SHO, Police Station Cantt. D.I. Khan, the above mentioned F.I.R. Was registered against the petitioner and others for taking illegal and unapproved procession from Basti Nad Ali Shah to Thallari Qasaban, D.I. Khan.
3. The learned counsel for the petitioner contended that the petitioner and others had taken the procession with the approval of local administration and was being taken since long according to schedule and prescribed route. He further contended that the police is not authorized to register F.I.R. For violation of section 144, Cr.P.C. Unless the complaint in writing is made by the authority in terms of section 195(1)(a), Cr.P.C. Since no complaint in writing was made by the District Coordination Officer, therefore, the registration of F.I.R. Is against law.
4. As against that, the learned A.A.-G. Contended that since the F.I.R. Has been registered, therefore, the petitioner may agitate the above point before the trial Court.
5. I have considered the arguments of learned counsel for the parties and carefully perused the record.
6. To know the controversy involved in the matter, I deem it appropriate to reproduce the provisions of section 195(1)(a), C.P.C. As under:-- "(1) No Court shall take cognizance:
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate."
7. From the bare perusal of the above provision of law, it is quite evident that in an offence under section 188, P.P.C. Cognizance cannot be taken by the Court except on the complaint in writing of the public servant or of some other public servant to whom he is subordinate. In the instant case, the F.I.R. Has been registered on the report of, Muhammad Nawaz, SHO, the cognizance of which cannot be taken by the Court. In such eventuality, the very F.I.R. Is against law and cannot proceed.
8. For the reasons mentioned above, this petition is accepted and F.I.R. No,846 dated 5-12-2011 is hereby quashed.