MATAHIR ALI Versus STATE

These four Criminal Miscellaneous Nos. 157/Q, 158/Q, 159/Q and 160/Q all of 1992, filed under section 561-A, Cr.P.C. by Matahir Ali and others seek quashment of the proceedings titled as State v. Matahir Ali etc. pending against them in the Court of Mr. Wajid Ali Kharl, Magistrate, 2nd Class, Chichawatani, arising out of case F.I.Rs. Nos. 187, 188, 189 and 190 of 1991 under section 188, P.P.C. registered at Police Station Saddar, Chichawatani, District Sahiwal.

2. This judgment will dispose of the abovementioned petitions by single order.

3. The brief facts of the case are; that the abovementioned cases have been registered against the petitioners al Police Station Saddar, Chichawatani, District Sahiwal, on the application of respondent No.2 who has alleged that he has been Sapurdar of the land owned by respondent No.3 and that during his Sapurdari the petitioners are alleged to have taken away the product of the land. It was further alleged that the petitioners had .told the complainant that they did not consider respondent No.3 as the owner of the land.

4. The petitioners moved the learned Magistrate under section 249-A, Cr.P.C. for the quashment of the proceedings but the same was dismissed vide his order, dated 22-11-1992. Hence these petitions.

5. It was contended that the complaint under section 188, P.P.C. in view of the prohibitory clause contained under section 195, Cr.P.C. cannot be filed by the police and nor the Court could take cognizance of such a case except on the complaint forwarded by the District Magistrate. To fortify his arguments he placed reliance on a judgment reported as Ghulam Qadir v. The. State 1990 P Cr. L J 1554.

6. The learned counsel appearing on behalf of the State repelled the arguments advanced by the learned counsel for the petitioners.

7. Having considered the contentions carefully, I feel that, although, the police is empowered to investigate the case and file a challan in the Court of Magistrate, a complaint within the meaning of section 4(h), Cr.P.C. has necessarily to be filed, before the Magistrate who can taken cognizance of the case. It appears that as in so many other cases, that amendment in the Cr.P.C. and that of the P.P.C. have been made after the Pakistan came into existence but the amendment in the Schedule II of the Cr.P.C. making an offence under section 188, P.P.C. as cognizable, was made in a hurry, overlooking the necessity for making a corresponding amendment in section 195(1)(a), Cr.P.C. The, result is that a Magistrate cannot take a cognizance of the case under section 188, P.P.C. so long as the District Magistrate or one of his subordinates file a complaint before him.

8. In this case, the only police has filed the complaint, so the learned Magistrate could not, therefore, take cognizance of the same and the proceedings I taken by him, by way of trial, would be illegal. The proceedings before him, therefore, are quashed.

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

These petitions are disposed of.

N.H.Q./M-1776/L Proceedings quashed.