AHMAD vs THE STATE

' The petitioner made an application to the Deputy Inspector-General of Police, Gujranwala Range, Gujranwala, that Muhammad Nawaz, Prosecuting Inspector, had obtained Rs, 5,000 from him as illegal gratification for managing acquittal of the accused in a case under sections 307, and 324 P.

P. C. Under the orders of the D. I. G./S. P. An inquiry was held in the matter by the P. D. S. P., Sialkot.

The application was found false, upon which S. H.

0., Police Station Shakargarh, made a complaint against the petitioner under section 182, P. P. C. In the Conrt of Ch. Irshad Ahmad, Magitrate First Class, Shakargarh. On 12th July 1983 the Magistrate framed a charge against the petitioner. The petitioner pleaded guilty to the charge and was convicted under section 182, P. P. C. And sentenced to rigorous imprisonment for four months and a fine of Rs, 500. He challenged this conviction and sentence in the Sessions Court. His appeal came up for hearing before Mr. Farrukh Amin, Additional Sessions Judge, Sialkot, who maintained the conviction, but converted the sentence to a fine of Rs, 2,000. The petitioner has come up in revision before this Court to question the correctness and propriety of the aforesaid orders.

2. The learned counsel for the petitioner contends that in view of the provisions of section 195, Cr. P.

C. The complaint made by the S. H.

0., Police Station Shakargarh, was incompetent, therefore, all the subsequent proceedings are illegal and the petitioner is entitled to acquittal. The learned counsel for the State submits that since the petitioner has been convicted on plea of guilty this petition for revision is not competent.

3. I have given my careful consideration to the submissions made by the learned counsel for the parties. Section 412, Cr. P. C., lays down that there shall be no appeal except as to the extent or legality of the sentence where the accused is convicted on his plea of guilty. The section does not restrict the powers of High Court to consider the legality of the sentence or the conviction in exercise of its revisional jurisdiction. This petition for revision is, therefore, competent.

4. Section 195 (1) (a), Cr. P. C., provides 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. In the instant case, the petitioner made the application to the D. I.-G., therefore, only he or some other public servant to Whom be wa subordinate could make a complaint under section 182, P. P. C. The complaint made by the S. H.O. Was wholly incompetent. The provisions of section 195, Cr. P. C. Are mandatory. In Mansab Ali's case it was observed:-- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction...."

The complaint before the Magistrate was incompetent and he had no jurisdiction in the matter. The conviction and sentence recorded by him being illegal, is quashed.

5. While parting with this case, I am constrained to remark that the manner in which the Additional Sessions Judge handled this case is highly deplorable. He did not even bother to have a look at the relevant section of the Pakistan Penal Code to find out as to what was the maximum punishment provided for the offence. He sentenced the petitioner to a fine of Rs, 2,000 whereas offence under section 182, P. P. C. Is punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The sentence of fine of Rs, 2,000 is illegal. PLD 1971 SC 124