MUHAMMAD WARYAM AND 3 OTHERS Versus THE STATE

ORDER

The petitioners have moved this petition under section 561-A, Cr.P.C. for quashment of proceedings arising out of Kalandara under section 182, P.P.C., against petitioners pending in the Court of Sh. Muhammad Hanif, Tehsildar, Noorpur Thal, District Khushab.

2. On 3-8-1087, respondent No. 4 Tehsildar was directed to submit a report with parawise comments and in obedience to the order of the Court, the said respondent has sent the report alongwith comments which has bden placed on record.

3. Briefly stated, the facts of the case are that the petitioners allegedly submitted several applications before the Deputy Commissioner, Khushab, respondent No. 2, saying that a building of Middle School Village Barana, District Khushab, was built by a contractor by spending a huge amount of Rs.2,42,000 and that sub standard material was used by the contractor in the construction of the said school building and that an inquiry may be held accordingly. Respondent No. 2 Deputy Commissioner forwarded the application to respondent No. 3 Assistant Commissioner, Noorpur for holding an inquiry. The respondent conducted the inquiry and found that the applications submitted against the contractor about the defective construction of the school building were not based on any evidence. The report of the respondent No. 3 further said that the Executive Engineer Buildings visited the spot and found that the building has been constructed with standard material and as such, there was no technical defects in the building at all. The Assistant Commissioner directed the concerned police station that a case be registered under section 182, P.P.C. against the petitioners. Accordingly, in compliance with the direction of the Assistant Commissioner, the S.H.O. Police Station Noorpur Thal prepared a Qalandara under section 182, P.P.C. and submitted the same for trial of the petitioners to respondent No. 4 Tehsildar who is also Magistrate Second Class.

4. Learned counsel for the petitioners argued that the alleged complaint was lodged by the petitioners before the Deputy Commissioner and, therefore, he is the concerned authority within the meaning of section 195, Cr.P.C. Learned counsel relying upon the provisions of section 195, Cr.P.C. submitted that the competent authority to lodge a complaint against the petitioners was the Deputy Commissioner and definitely not the Assistant Commissioner. Learned counsel forcefully submitted that the Assistant Commissioner was directed to hold an inquiry and thereafter, to submit the inquiry report to the Deputy Commissioner, respondent No. 2. Therefore, in the given facts and circumstances of the case, the public servant concerned was the Deputy Commissioner alone. Learned counsel urged that the entire proceedings taken against the petitioners by the respondent No. 3 were without lawful authority on the face of record. Mr. S.M. Zubair, learned Additional Advocate-General alongwith Rana Ahmad Saeed, Advocate are present. The learned State counsel has also supported the contentions of the learned counsel for the petitioners inasmuch as the learned Additional Advocate-General stated that the Assistant Commissioner is subordinate to the Deputy Commissioner and that cognizance of the complaint was taken by the Deputy Commissioner in the case and, therefore, for initiating proceedings under section 195, Cr.P.C., the public servant concerned was the Deputy Commissioner and not the Assistant Commissioner.

5. I have heard learned counsel for the parties and perused the record very minutely. I am of the view that the contention of learned counsel for the petitioners is well-founded inasmuch as the Assistant Commissioner, respondent No. 3, is not at all competent to initiate proceedings against the petitioners of his own. The stand taken by both the parties is that the Assistant Commissioner respondent No. 3 is not the public servant concerned within the meaning of the A expression used in section 195, Cr.P.C. They have stated that keeping in view the facts and circumstances of the instant case, the public servant concerned is the Deputy Commissioner who initially took the cognizance of the matter on the complaint of the petitioners. This being so, I am of the view that the proceedings initiated by respondent No. 3 and pending before respondent No. 4 are without lawful authority and of no legal consequence. Accordingly, this petition succeeds and is allowed. Resultantly, the proceedings before the respondent No. 4 are hereby quashed.

S.G.D./M-508/L Proceedings quashed.