NIZAMUDDIN SAMEJO Versus SUB-DIVISIONAL MAGISTRATE

1. The four applicants, Nizamuddin Samejo and 3 others are sent up by police of Ubauro consequent to F.I.R. Crime No. 127/86 registered at Police Station Ubauro by S.H.O. Sayed Muhammad Abed Shah on 14‑8‑1986 under section 188, P.P.C. and the proceedings are pending in the Court of S.D. M., Mirpur Matheloas Case C.22/1986.

2. Mr. Muhammad Siddique Kharal learned counsel appearing for applicants has contended that the proceedings are without jurisdiction and liable to be quashed being bad in law.

3. Briefly the facts giving rise to this application are that on 14‑8‑1986 S.H.O. Ubauro Sayed Muhammad Abid Shah registered case under section 188, P.P.C. alleging that while he and his subordinate staff were on patrolling duty they received spy information that residents of Deharki namely Nizamuddin Samejo and 3 others are to take out procession against Government at WAPDA Chowk Ubauro S.H.O. went to the spot and found 50/60 persons in procession raising slogans against the Government and High Dignatories, according to report taking out of procession was inviolation of the order of District magistrate (No. DN. HB(b) 2114, dated 13‑8‑1986 the present applicants were arrested under section 144, Cr.P.C. and subsequently challaned before S.D.M., Mirpur Mathelo who framed formal charge on 16‑12‑1986 Exh.2 on record.

4. It has been argued by Mr. Muhammad Siddique Kharal on behalf of the applicants that proceedings against the applicants are without lawful authority as they are instituted in violation of section 195(1)(a) of the Cr.P.C. under section 195, Cr.P.C. No Court shall take cognizance 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 order violated by the applicants as alleged in F.I.R. was passed by District Magistrate, Sukkur it was necessary that before starting any proceedings against applicants complaint should be filed by the District Magistrate or by some Officer to whom he was subordinate.

5. Mr. Khadim Ali Shoro, learned Advocate appearing for State contended that section 188, P.P.C. has been made cognizable hence the legal objection raised does not make proceedings illegal or bad in law. On Court question the learned State counsel could not produce relevant amendment nor could produce any case‑law in support of his contention. However, the answer to this contention of the State counsel is found in the decision in case of Ali Hassan v. The State reported in 1979 P Cr. L J 941. In the above decision reference is also made to case of Sharif and others v. State reported in P L D 1975 Lah. 1315. I have heard both the learned Advocates at length and considered the law cited by the Advocate for applicants I find the two decisions cited cover the case in hand.

6. Cognizable offence is defined under section 4(f), Cr.P.C. as an offence in which a Police Officer may arrest without warrant. By making offence under section 188, P.P.C. cognizable the intention of Legislature was to authorise the police to arrest the person violating section 144, Cr.P.C. on the spot and as held by my learned brother Mr. Justice Mushtaq Ali Kazi (as he then was) in case of Ali Hassan v. State reported in 1979 P Cr. L J 941 in absence of corresponding amendment in section 195, Cr.P.C. the embargo under clause (1)(a) to section 195, Cr.P.C. holds good. The State counsel's contention is, therefore, no answer to the infirmity pointed out so far taking cognizance by Magistrate is concerned and State counsel has failed to convince me that after amendment the legal embargo provided under section 195(1)(a), Cr.P.C. becomes redundant as complaint is not the same as tiling of charge‑sheet in a case under section 188 nor Court could take cognizance which is permissible only on the complaint in writing of the public servant concerned. The complaints defined under section 4(h) Cr.P.C. means the allegation made orally or in writing to the Magistrate with a view to his taking action under this Code that some person whether 'known or unknown has committed an offence but it does not include the report of Police Officer.

7. Plain reading of this proviso excludes police report.

8. In view of above discussion according to me the cognizance taken by the learned S.D.M., Mirpur Mathelo and charge framed by him on the basis of charge‑sheet by Ubauro Police is all in contravention to the law and invalid. Consequently, the Criminal Miscellaneous Application No. 876 of 1987 is accepted and the proceedings against the applicants pending in the Court of S.D.M., Mirpur Mathelo's (Criminal case No. C‑22 under section 188, P.P.C.) are quashed.

9. M. Y. H./N‑85/K Petition accepted.