SHARIF Versus THE STATE

This is an application by Sharif and four others under section 561‑A, Cr. P. C. for the quashment of proceedings against them under section 188, Cr. P. C., pending in the Court of Mr. Manzoor Ahmad Bajwa, M. I. C. Sahiwal, in pursuance of F. I. R. No. 225/74, dated 5‑11‑1974. The peti tioners are alleged to have violate an order of the District Magistrate, Sahiwal (No. 8760/G/HC), dated 14‑10‑1974 whereby all ten were prohibited from removing the crops without giving batai to the owners of the land cultivate by them. A case was accordingly registered against them vide the aforemen tioned F. I. R. and was investigated by the police, which filed the challan in the Court of a local Magistrate.

2. The contention raised by the learned counsel for the petitioners was that the police had no authority to investigate a case under section 188, P. P. C. and that offence is not cognizable and secondly that no Court can take cognizance of the case in view of the provisions of section 195 (1) (a), Cr. P. C., which reads as follows :‑

195(1)(a) No Court shall take congizance :‑ 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.

The learned State Counsel pointed out, on the other hand, that the ,offence under section 188, P. P. C. has been made cognizable by an amend ment in Schedule II of the Criminal Procedure Code (Refer P L D 1969 Provincial Statutes 52), and the police is, therefore, entitled to investigate the case.

3. The question which arises for consideration is whether, under the peculiar circumstances of this case when there is a conflict between two provisions of the Criminal Procedure Code, namely, that while an offence under section 188, P. P. C. has been made cognizable and the police is thus authorised to investigate the case and submit a challan in the Court of a Magistrate, the Magistrate is not empowered to take cognizance thereof in view of the bar placed upon the same by section 195(1) (a), Cr. P. C.

Having considered these contentions carefully, I feel that although the police is empowered to investigate a case and file a challan in the Court o a Magistrate, a complaint within the meaning of section 4(h), Cr. P. C. has necessarily to be filed, before the learned Magistrate can take cognizance o the case. It appears that, as in so many other cases where amendments in the Penal Code or the Criminal Procedure Code have been made after the Partition, the amendment in Schedule II of the Cr. P. C. making an offence under section 188, P. P. C. cognizable, was made in a hurry, over‑looking the necessity for making a corresponding amendment in section 195(1)(a),l Gr. P. C. Tile result is that a Magistrate cannot take cognizance of a easel under section 188, P. P. C. unless and until the concerned officer (in this case, the District Magistrate or one of his subordinates), files a complaint before the learned Magistrate.

4. Since no such complaint has been filed in the present case, the learned Magistrate could not, therefore, take cognizance of the same and the proceed ings taken by him, by way of trial, would be illegal. The proceedings before him are, therefore, quashed.

It is, however, open to the learned District Magistrate to file a complaint in compliance with the provision of section 195 (1)(a), Cr. P. C., on which the proceedings against the petitioner, can be started again.

5. This disposes of the application.

S. A. H. Proceedings quashed.