MUHAMMAD IBRAHIM vs UMAID ALI and 4 others

ORDER

1. ' AMER RAZA NAQVI, J.---Through this Criminal Miscellaneous Application Applicant challenged the order dated 23.013.2014 passed by Second Civil Judge and Judicial Magistrate, Thatta in FIR No.21/2014 registered under sections 147/148/149/114/447/324 P. P.0 . At P. S. Gharo .

2. ' Learned Counsel for the Applicant submitted that in the F.I.R. Complainant leveled allegations against Umaid Ali, Sultan and Allandino that they came at the place of incident duly armed with Lathee, Pistol and Repater along with two unknown persons and made straight fire on the complainant. Police after investigating the matter submitted a report before Learned Judicial Magistrate, such report was filed under Class "C". Learned Magistrate did not agree in view of the material produced by the police before Magistrate and came to the conclusion that the FIR was false and therefore, due to such reason Magistrate disposed of the FIR in Class "B" (Untrue/False case). Per learned Counsel till such stage there was no illegality in the order of the Magistrate.

3. However, thereafter learned Magistrate issued a direction to the S.H.O. To submit complaint accordingly which would mean that the S.H.O. Was directed to proceed against the Complainant presumingly under Section 182, P.P.C. Learned Counsel submits that such direction is in violation of Section 195(1)(a), Cr.P.C. Learned Counsel has relied upon 1993 PCr.LJ 767, PLD 2001 Lahore 84 and 1993 PCr.LJ 1097. Learned Counsel submits that the above said case law clearly show that the Learned Magistrate can not direct the police to initiate proceedings Under Section 182, P.P.C.

4. ' Learned A. P. .G. Submits that learned counsel for the Applicant is correct to the extent that learned Magistrate can not issue direction to the Police to proceed under section 182 F.P.C. Against the Complainant of the F.I.R. And to that extent the impugned order is not correct.

5. ' Mr. Mehmood Anwar Hussain Baluch Advocate appears on behalf of the Respondents namely Umaid Ali, Sultan and Allah Dino who were accused in the FIR. They were initially made Respondents No.1 to 3 respectively by the Applicant but subsequently at the request of the learned counsel for the Applicant their names were deleted. However, Mr. Mehmood Anwar Hussain Baluch submits that such order was passed in his absence and he is necessary party. He was also heard in the matter. Learned counsel for said persons submits that the material referred by the learned Magistrate and documents filed by the Applicant himself show that Complainant is an influential person and a grave injustice was committed against his clients and in the case his clients remained behind the bars for three days and thumb impressions of his clients were taken on different papers.

6. ' In reply Mr. Abid Akram submits that he does not deny the power of Police to initiate proceedings under section 182, P.P.C. Against the complainant but his grievance is that such direction can not be issued by learned Magistrate in view of bar contained in Section 195(1)(a) Cr . P.0 .

7. ' I have heard all the learned Counsel at length and have perused the material placed on record. I have also gone through the authorities relied upon by the learned counsel for the Applicant. In view of the said authorities and language of Section 195(1)(a), Cr.P.C. It is clear that due to bar contained in such section Magistrate can not issue any direction or take cognizance under section 182, P.P.C.

8. At his own. It appears that this bar was provided for the reason that very language of Section 182, P.P.C. Shows that aggrieved party in such section is the Officer who faced inconvenience and hardship due to false complaint and this is not in respect of remedy which might be available to the accused persons who were aggrieved due to and vivtimized because of such complaint and they have their remedy under other provisions in P.P.C. And they are at liberty to invoke those provisions. The bar contained in Section 195(1)(a) Cr.P.C. Also does not mean that the police also can not move a complaint under section 182, P.P.C. -I have also, noticed that the Magistrate in the impugned order has not referred section 182, P.P.C. A however, it is an admitted position that such direction cannot be issued for lodging the case against the Complainant under section 182, P.P.C.

9. Under the direction of the court and it could only be done by the police itself, therefore, if in case any proceedings under section 182, P.P.C. Have been initiated this may not be treated under the order of the Magistrate and police itself should decide that whether or not any proceedings are warranted in such matter or not. This application, therefore, is allowed to the above extent and impugned order is modified to the extent of observation made in this order and as a result impugned order may not be treated as a direction to the Police to proceed against the Complainant under section 182, P.P.C. It is also observed that accused persons in the FIR would be at liberty to invoke remedy available to them in accordance with law and no sub-ordinate court should be influenced by this order while deciding any other proceedings filed by any party which may be decided in accordance with law on its own merits. Application stands disposed of.