ABDUL BAQI and 3 others vs THE STATE

1. ' This is criminal miscellaneous application under section 561-A, Cr.P.C. Wherein the petitioner has prayed for quashment of proceedings in respect of No,322 of 1995, under section 188, P.P.C. Of Police Station Gulzar-e-Hijri, pending before S.D.M., Airport, Malir, Karachi.

2. ' Learned counsel for the applicant contends that F.I.R. No,322 of 1995 has been registered by A.S.-I.

3. Moid Khan without written orders of the District Magistrate. Reliance is placed upon Syed Abdul Rehman Shah and 25 others v. Station House Officer, Police Station City Mansehra and another 1996 PCr.LJ 483, wherein learned Judge in Chambers has observed:-- "No Court shall take cognizance of any offence punishable under sections 172 and 188, P.P.C. Except on the complaint in writing of the Public Servant concerned, or of some other Public Servant to whom he is subordinate."

4. ' It was also observed at page 425:-- "In the instant case proceedings under section 188, P.P.C. Have been initiated before the Magistrate by the same Police Officer who had initially lodged the report. As section 195(1)(a), Cr.P.C. Requires of a Court to take cognizance of the offence only on a complaint in writing of the public servant concerned who promulgated an order under section 144, Cr.P.C. All such proceedings conducted before the Magistrate Court were, thus, invalid and could be quashed by the High Court while exercising jurisdiction under section 561-A, Cr.P.C. An amendment has been although made in the Schedule of the Criminal Procedure Code and section 188, Cr.P.C. Made cognizable thereby and a Police Officer after the aforesaid amendment in the Schedule has now been empowered to make arrest of a person without warrant if an offence punishable thereunder has been committed in any public place, but there being no corresponding amendment in section 195, Cr.P.C. a Court despite that could only take cognizance of such an offence on a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. We have enough of precedent law on this score and I would refer few cases cited at the Bar; Sharif and 4 others--- Petitioners v. The State---respondent PLD 1975 Lah. 1315 and Ali Hussain---Applicant v. The State-- Respondent 1979 PCr.LJ 941. The learned A.A.-G. Has candidly conceded to this position. It would he, therefore, held that no prosecution of the petitioners could take place on a charge under section 188, P.P.C. For the alleged violation of an order passed under section 144, Cr.P.C. By the District Magistrate, Mansehra in the absence of a written complaint by the District Magistrate himself or of some other officer to whom he is subordinate."

5. ' Nizamuddin Samejo and others v. Sub-Divisional Magistrate and others 1988 PCr.LJ 988, wherein learned Judge in Chambers at page 990 has observed:-- "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, P.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. The State reported in 1979 PCr.LJ 941, in absence of corresponding amendment in section 195, Cr.P.C. The embargo under clause (1)(a) 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. Become redundant as complainant is not the same as filing 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."

6. Learned A.A.-G also conceded to the legal position that the Police Officer is not authorised to register F.I.R. For the violation of section 144, Cr.P.C. Unless complaint in writing is made by the authority in terms of section 195(1)(a), Cr.P.C. The proceedings, being invalid and illegal, are hereby quashed. Consequently criminal miscellaneous application is allowed.