RIAZ AHMED Versus THE STATE
1. The applicants have invoked inherent jurisdiction of this Court under section 561‑A Cr. P.C. for quashment of proceedings pending before learned A.C.M. Court No.VI, East Karachi.
2. A report was lodged against the three applicants by one Mobin Baig, bailiff of the District Court Karachi (East), stating that on 18‑7‑1985 at about 03.30 p.m., when the said bailiff had gone to the shop of the applicants to execute a writ of ejectment issued by the Court of learned Sixth Senior Civil Judge (East), Karachi in Rent Case No.739 of 1985, the three applicants, out of whom applicant Riaz Ahmed was respondent in the said Rent Case, raised cries which attracted other persons of the locality who then forcibly pushed the bailiff out of the shop.
3. The bailiff was, however, saved on arrival of the police. A complaint of the incident was lodged at Police Station, Ferozabad disclosing offence under section 188, P.P.C. against the three applicants. Thereafter, the three applicants were charge‑sheeted before the learned A.C.M. who framed charge against the three applicants under sections 186, 188, 353 and 34, P.P.C.
4. The applicants then filed an application under section 249‑A, Cr. P.C. before the learned A.C.M. for quashment of the criminal prosecution against them which was dismissed by the learned Magistrate vide order, dated 12‑4‑1986.
5. I have heard Mr. Gul Zaman Khan, learned counsel for the applicants and Mr. A.‑G. Mangi, learned A.A.G. appearing on behalf of the State. The contention of Mr. Gul Zaman Khan first of all is that the allegations in the F.I.R. fail to disclose any offence against the three applicants and secondly that in any case the facts alleged against the applicants at the most disclose offences only under sections 186 and 188, P.P.C., of which no Court can take cognizance without filing of a complaint by the public servant concerned. Reliance in this respect has been placed by the learned counsel on section 195(1)(a), Cr.P.C. which, inter‑alia, provides:‑
6. "195.‑‑(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. Turning to the first contention of Mr.Gul Zaman Khan, all that is stated against the applicants in the F.I.R. is that the complainant went to execute writ of possession issued by the Civil Court in respect of the shop, but before he could do the same, some persons from nearby gathered at the shop and pushed the bailiff out of the shop. These allegations fail to disclose that any offence had been committed by the applicants. Mr. Gul Zaman Khan also referred to the charge- sheet and the charge framed by the learned A.D.M. against the applicants. Although the charge‑sheet does mention section 353, P.P.C., but the substance of accusations contained therein fails to disclose any offence under section 353, P.P.C. However, charge against the applicants has been framed by the learned A.C.M. under ; sections 186, 188, 353 and 34, P.P.C., but question arises, can the learned A.C.M. frame charge under any section of the P.P.C. when neither the F.I.R. nor the charge‑sheet discloses commission of any offence under such sections. Needless to say that charge should be based on the substance of accusations contained in the charge sheet a nd the F.I.R However the F.I.R. or the charge‑sheet fail to disclose that any offence has been committed by applicants.
8. In view of such circumstances the first contention of Mr. Gul Zaman Khan does not appear to be without fore. Even Mr. A.‑G. Manger learned A.A.‑G. appearing on behalf of the State has not contested the same.
9. Turning to the next argument of Mr. Gul Zaman Khan, section 19Cr.P.C. clearly provides for filing of a complaint by the concerned public servant if any offence punishable under sections 172 to 188 of the P.P.C. is alleged to have been committed. Admittedly, no such complaint was lodged by the learned Senior Civil Judge, whose order was allegedly being executed by the bailiff or the bailiff who allegedly was obstructed in his duties. It is, therefore, clear that in any case cognizance was not properly taken by the learned Magistrate.
10. For the aforesaid reasons the pendency of proceedings against the applicants amount to abuse of the process of the Court a nd the same are hereby quashed.
11. A./R‑42/K
12. Proceedings quashed.