YAR MUHAMMAD AND 12 OTHERS Versus THE STATE

1. By this single order I propose to decide the above two Criminal Miscellaneous Applications as the identical legal points are involved in both the applications.

2. In Criminal Miscellaneous Application No. 409 of 1987 'the applicants were challaned under section 188, P.P.C. by S.H.O. City Hyderabad on 19-8-1986 before the learned A.C.M. City Hyderabad for violating the orders under section 144, Cr.P.C. passed by the District Magistrate, Hyderabad. The allegations against the applicants are that the learned District Magistrate, Hyderabad had imposed 144, Cr.P.C. in Hyderabad District prohibiting processions and raising slogans. On 18-8-1986 it is alleged that the applicants alongwith 10/12 ladies had taken .out procession and raised slogans on which Inspector Khalil Ahmed Bajwa and his subordinate staff arrested the applicants, while the ladies ran away. After necessary investigation the applicants were sent up under section 188, P.P.C. The applicants moved an application under section 249-A, Cr.P.C. on 2-10-1986 but the same was rejected vide order, dated 6-10-1986.

3. In Criminal Miscellaneous Application No. 410 of 1987 the brief facts giving rise to the present application are that on 16-8-1986 Mohammad Saleh A.S.I.P., Shahpur Chakar registered a case under sections 188 and 323, P.P.C. against the applicants for violating orders under section 144, Cr.P.C. imposed by S.D.M. Shahdadpur vide his order, dated 11-8-1986 and had thus committed offence under section 188, P.P.C. They had also committed an offence under section 323, P.P.C. After necessary investigation the applicants were challaned before the Court of learned A.C.M. Shahdadpur. A charge under sections 188 and 323, P.P.C was framed against the applicants. An application under section 249-A, Cr.P.C. was filed but the learned Magistrate passed the following orders:-

4. "The witnesses are present. Let the witnesses be examined when the application will be considered."

5. The statement of A.S.I. Mohammad Saleh was accordingly examined. However, the applicants filed a revision application before the learned Sessions Judge, Sanghar but the same was dismissed on 5-1-1987. The present quashment application has been filed for the quashment of the above proceedings including the orders.

6. I have heard Messrs Kamaluddin and Wali Mohammad Dharejo learned counsel for the applicants, Mr. Imam Bux Sheikh appearing for the State and have gone through the documents produced alongwith the quashment applications.

7. It has been contended by the learned counsel appearing for the applicants that the complaint was not filed by the authorities who had passed an order under section 144, Cr.P.C. nor by their superiors, and therefore, the cognizance taken by the Court was in contravention of section 195, Cr.P.C. and as such was without jurisdiction. That there was no complaint filed as envisaged by section 195, Cr.P.C. and, therefore, the taking of cognizance by Courts concerned was illegal. In support of their contentions the learned counsel have relied upon P L D 1975 Lah. 1215; 1979 P Cr. L J 941 and 1984 P Cr. L J 2514.

8. Mr. Imam Bux Sheikh learned counsel appearing for the State has conceded to the above legal position and has contended that the provisions of section 195, Cr.P.C. were mandatory and the cognizance could not be taken by the two Courts on the reports submitted by the police.

9. I have considered the contentions of the learned counsel. Admittedly the cognizance taken by the Courts against the applicants was taken on the basis of challan submitted by the police concerned and no complaint as envisaged by section 4(h), Cr.P.C. was filed in the two cases. Although section 188, Cr.P.C. was cognizable and the police was empowered to investigate the case, the complaint within the meaning of sections 4(h), Cr.P.C. had necessarily to be filed before the Magistrate and then alone he could take cognizance of the case. In view of the contentions raised by the learned counsel it would be appropriate to refer to section 195(1)(a) which reads as follows:-

10. "195(1)(a)--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."

11. Although section 188 has been made cognizable, but there is no amendment in section 195. Cr.P.C. and, therefore, the cognizance could only be taken on the complaint filed by the person concerned or by the person to whom he was subordinate. In the case of Sharif and 4 others v. The State P L D 1975 Lah. 1215 it was observed., "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. is necessarily to be filed, before the learned Magistrate can take cognizance of the case. It appears that, as in so many other cases where amendments in the Penal Code or the Criminal Procedure Code have been made after the partition, the amendment in Schedule II of the Cr.P.C. making an offence under section 188, P.P.C. cognizable, was made in hurry overlooking the necessity for making a corresponding amendment it section 195(1)(a), Cr.P.C. The result is that a Magistrate cannot take cognizance of a case under section 188, P.P.C. unless and until the concerned officer files a complaint before the learned Magistrate" and the proceedings were, therefore, quashed.

12. In Ali Hassan v. The State 1979 P Cr. L J 949 while relying upon the above Lahore case Mushtaq Ali Kazi, J. of this Court (as he then was) was pleased to quash the proceedings under similar circumstances.

13. In the case of Wali Mohammad and others v. The State 1984 PCr.LJ 2514 it was observed:

14. "According to the provisions of section 195 subsection (1)(a), Cr.P.C. no Court can take cognizance of an offence punishable under section 188, P.P.C. except on complaint in writing of the public servant or of some public servant to whom he is subordinate."

15. In the above case it was further held that:-

16. "Since section 144, Cr.P.C. was imposed by Assistant Commissioner, and the complaint was not lodged by the Assistant Commissioner nor by his superior officer, as such the proceedings pending against the petitioners have been initiated without jurisdiction and have no force of law."

17. The proceedings were, therefore, quashed.

18. In view of the above discussion and the legal position, I amt of the considered view that although an offence under section 188, P.P.C. is cognizable and the police is thus authorised to investigate the case and submit a challan in the Court of Magistrate, the Magistrate was not empowered to take cognizance thereof in view of the bar placed upon the same by section 195(1)(a), Cr.P.C. Therefore, the cognizance taken by the two Courts against the applicants was without jurisdiction and as such the proceedings pending against the applicants before the A.C.M. City, Hyderabad, and before Civil Judge and F.C.M., Shahdadpur are hereby quashed.

19. S.A./Y-16/K Proceedings quashed.