Ammar Altaf Satti Versus State
Order
Tariq Mehmood Jahangiri, J .--- The petitioner by way of this constitutional petition seeks quashing of FIR No. 329/21 dated 06.07.2021, offence under Section 188 P.P.C registered at Police Station Kohsar, Islamabad.
2. Succinctly stated facts of the case are that, upon written complaint made by Operator Muntazir C/5002 (A.C City, Islamabad), police has registered the above mentioned FIR. The allegations set forth in the FIR are that on 06.07.2021, petitioner / accused along with 30/35 students took out a procession / Jaloos, blocked the road while raising slogans against the government and violated the Standard Operative Procedures (SOPs) of Covid-19, issued by Additional District Magistrate, ICT, Islamabad vide order dated 18.05.2021, wherein Section 144 Cr.P.C, 1898 was enforced for the period of two (02) months, hence the FIR was registered.
3. Petitioner in person states that FIR could not be registered, as there is bar under Section 195 Cr.P.C and has prayed that FIR is liable to be quashed.
4. On the other hand, learned State Counsel has controverted the arguments made by the petitioner and has stated that FIR has been registered strictly in accordance with law; the petitioner / accused has an alternate remedy under section 249-A, Cr.P.C for acquittal, and has prayed for dismissal of instant writ petition.
5. Arguments heard, record perused.
6. First Information Report No. 329/21 dated 06.07.2021, has been registered by the police of P/S Kohsar, Islamabad, upon the compliant made by Muntazir, Constable No. 5002, Operator, Assistant Commissioner (City), Islamabad, whereas, the order under section 144 Cr.P.C was passed by Additional District Magistrate, ICT, Islamabad.
7. For the convenience, Section 195(1)(a) Cr.P.C is reproduced below:-
"195. (1) No Court shall take cognizance:-
(a) 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."
8. It is an admitted fact that order under Section 144 Cr.P.C has not been issued /passed by Muntazir (Constable), Operator of Assistant Commissioner (City), Islamabad.
9. It is held in a case titled as Yar Muhammad and 12 others v. The State 1998 PCr.LJ 2156, that:-
"Although section 188 P.P.C. has been made cognizable, but there is no amendment in section 195 Cr.P.C. and, therefore, cognizance could only be taken on the complaint filed by the person concerned or by the person to whom he was subordinate.
10. It is further held in a case titled as Sharif and 4 others v. The State PLD 1975 Lah. 1215, that:-
"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 in 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."
Reliance is also place on the following cases:- i. Abdul Wahab v. Muhammad Nawaz and 7 others (2000 SCMR 1904). ii. Abdul Baqi and 23 others v. The State (1998 PCr.LJ 87). iii. Syed Abdul Rehman Shah and 25 others v. Station House Officer, Police Station City, Mansehra and another (1996 PCr.LJ 483). iv . Ikram and 6 others v. SDM Tamergara, District Dir and another (2000 PCr.LJ 297). v. M. Sharif v. S.H.O and others (2012 MLD 114).
11. It is crystal clear that no Court can take cognizance, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. The matter which will become illegal tomorrow at the time of submission of challan, is also illegal today. When a Court cannot take cognizance, no challan can be submitted.
12. In view of the above cited cases and the legal position, instant writ petition is allowed , FIR bearing No. 329/21 dated 06.07.2021, offence under Section 188 P.P.C registered at Police Station Kohsar, Islamabad, registered on the complaint of Operator, Muntazir C/5002 (A.C City, Islamabad), in absence of the complaint from Additional District Magistrate, ICT, Islamabad, who passed an order under section 144 Cr.P.C or any other person to whom he is subordinate, would amount to abuse of process of law, hence the same is hereby quashed.
UN/43/Isl. Petition allowed.