GHULAMULLAH vs THE STATE

' This application under section 561-A, Cr.P.C. Is filed on behalf of applicant Ghulamullah son of Bakhshal, who is facing proceedings under section 188, P.P.C. Pending in the Court of S.D.M., Orangi Town, Karachi West.

2. The facts of the case are that on 2-8-1992, S.H.O. Manghopir Police Station received spy information that some persons are occupying Government land within the jurisdiction of Police Station Manghopir. At about 2-15 p.m. He proceeded to the spot alongwith police party and was able to arrest four accused persons while the present applicant managed to escape. As this was in violation of the orders passed by the Deputy Commissioner, Karachi West, dated 26-6-1992 as such it was a case of violation of section 144, Cr.P.C. Which is punishable under section 188, P.P.C.

Accordingly the S.H.O. Lodged the report being F.I.R. Crime No,99/92 at Police Station Manghopir---

3. The investigation of the case was also conducted by the S.H.O. Who after completion of the same submitted the challan and the trial is now pending before the learned S.D.M. Orangi Town.

4. I have heard Mr. Attaullah Khan, learned counsel for the applicant and Mr. Syed Sarfraz Ahmed, AA.-G. For the State. The latter has not opposed this application.

5. It may be noted that this case was fixed for Katcha Peshi but as Mr. Syed Sarfraz Ahmed, AA.-G.

Was present in the Court in other cases, therefore, by consent this matter was taken up for regular hearing at Katcha Peshi stage since a very short legal point was involved. It has been contended by Mr. Attaullah Khan, learned counsel for the applicant that an offence under section 188, P.P.C. Is covered by the provisions of section 195, Cr.P.C. And, therefore, the police was not competent to institute the proceedings on the basis of a challan. Mr. Syed Sarfraz Ahmad, AA.-G. Agrees with this legal proposition.

6. I have carefully considered the legal point raised by the learned counsel and I have also gone through the material available on record. Section 195, Cr.P.C. Clearly provides that for an offence under section 188, P.P.C. Cognizance can be taken by the Court only upon a complaint in writing.

This is a special provision under which the offence becomes cognizable when a complaint is filed, it, therefore, follows that cognizance could not be taken on a challan report. In the present case no such complaint was filed but instead the police has submitted a challan report which is also called a police report. The definition of the word "complaint" is provided by section 4(h), Cr.P.C., the said definition expressly excludes the report of a police officer. It is, therefore, clear that the proceedings which are pending before the learned S.D.M. Orangi Town are without jurisdiction as the learned S.D.M. Has not taken cognizance on a complaint. Cognizance in this case has been taken on a police report, therefore, the proceedings are without jurisdiction and as such are an abuse of the process of the Court.

7. Before parting with this judgment it may be noted that the matter was fully argued on 6-12-1992 and thereafter it was reserved for judgment. It transpired from the challan that the name of the applicant was placed in column II and he was shown as absconder, therefore, it was ordered that the matter be fixed for further hearing. The matter was again fixed for today when Mr. Attaullah Khan, learned counsel for the applicant made a statement at the bar that the applicant had been released on bail before arrest and thereafter he has been appearing before the trial Court as such the applicant was not an absconder in this case. I have no reason to doubt the statement made by the learned counsel and after further hearing and in the light of what has been stated above, I allow this application and quash the proceedings pending against the applicant before the Court of learned S.D.M. Orangi Town, Karachi West.