MOLAZIM HUSSAIN Versus THE INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE
This is a petition under section 561-A of the Cr.P.C., asking for the quashment of proceedings in the case "State v. Mulazim Hussain". The charge against the petitioner Malik Mulazim Hussain is made under section 182 of the Pakistan Penal Code.
2. The petitioner is a retired School Teacher who made a complaint against one Javed Akhtar before the Inspector-General of Police, Punjab, Lahore. This application is Annexure A attached to the present petition which reads as follows:--
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2. The D.S.P., Circle Sadar Jhang held a confidential inquiry and came to the conclusion that the allegations made by the complainant to the Inspector-General were on account of mala fides and baseless against the accused, mentioned by him, with whom he had personal enmity.
3. Whereafter the Sub-Inspector, Police Station Athara Hazari sent a Kalandra to the Court of Magistrate saying that action be taken against the complainant Mulazim Hussain as he was in the habit of making false complaints. It was inter alia stated:---
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4. An application was made before Mr. Abdul Salam Arif, Magistrate 1st Class, Jhang, under section 249-A of the Cr.P.C., asking for the acquittal of the accused but this was not allowed. The petitioner has now come before this Court asking for the quashment of the proceedings on the ground that the Kalandra itself offended the provisions of section 195 of the Cr.P.C., and the proceedings were illegal because the complaint had been made to the Inspector General of Police and he alone could have initiated action against the accused/petitioner or in the alternate, any public servant to whom the Inspector-General was subordinate.
5. The relevant provisions of section 195(1) of the Cr.P.C., read as follows:---
"(1) No Court shall take cognizance:-- Prosecution for contempt of lawful authority of public servants. (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; Prosecution for certain offences against public justice. (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, except, on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or
Prosecution for certain offences relating to documents given in evidence. (c) of any offence described in section 463 or punishable under section 471; section 475 or section 476 of the Code, when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) .
(3) .
(4) .
(5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint."
6. In this connection, reliance may be placed on the case of Malik Muhammad Sadiq v. The State, 1977 PCr.LJ 445. The relevant excerpt from which reads as under:---
"Relying on section 195, Cr.P.C., the learned counsel for the petitioner has contended that since the petitioner had made the complaint before the Superintendent of Police, Dera Ghazi Khan, and the case under sections 354, 392 and 448, P.P.C., was registered at the Police Station under his orders, therefore, only he, or any other officer to whom he was subordinate, was competent to initiate the proceedings against the petitioner and the present complaint which has been initiated by the S.H.O., is wholly incompetent and there is complete absence of jurisdiction in the Court in which it is now pending. Section 195 of the Code of Criminal Procedure, inter alia, lays down that no Court shall take cognizance 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. On the last date, the learned counsel for the State requested for adjournment as he wanted to study the case-law, but he has not been able to produce any authority to show that a complaint made by a person other than the public servant concerned or some other authority to whom he is subordinate, is competent. He, however, submits that the irregularity in the complaint, if any; is curable under section 537 of the Code of Criminal Procedure. The contention is without any force because section 195, Cr.P.C., is mandatory and non-compliance of its provisions bars the jurisdiction of the Court. I am, therefore, of the view that there being complete absence of jurisdiction in the Court, the whole proceedings are vitiated and the defect is not curable under section 537 of the Code of Criminal Procedure."
7. Reference may also be made to the case of Muhammad Afzal and others v. The State, 1989 PCr.LJ 1252, the relevant portion of which says:---
"F.I.R., regarding violation of the order of learned District Magistrate passed under section 144, Cr.P.C., has been lodged by Aijaz Khan, Deputy Controller of Buildings, Zone XVI at Police Station Preedy and no complaint is lodged either by District Magistrate himself or by person to whom he is subordinate. In such circumstances, in view of provisions laid down under section 195(1)(a), Cr.P.C., the entire exercise is illegal and continuation of the proceedings are abuse of the process of Court. Consequently, this application is allowed and the proceedings are quashed."
8. Since the complainant in this case has not been made accused by the Inspector General of Police to whom the alleged false application was made nor by any officer above the Inspector-General, the provisions of section 195 place an embargo on the present proceedings which are impugned. As such they cannot be continued in law and are, thus, quashed.
N.H.Q./M-1298/L
Proceedings quashed.