Dr. MUHAMMAD IBRAHIM KHAN and 2 others vs THE STATE
This matter comes before the Sindh High Court upon an application seeking the quashment of F.I.R. No. 40 of 2001 registered under Section 188 of the Pakistan Penal Code for the alleged violation of a prohibitory order issued under Section 144 of the Code of Criminal Procedure against holding a private 'Jirga'. The core legal question is whether an F.I.R. under Section 188 of the Pakistan Penal Code can be competently registered or initiated upon the complaint of an officer subordinate to the authority that issued the prohibitory order, in light of Section 195(i)(a) of the Code of Criminal Procedure. The Court held that under Section 195(i)(a), the complaint or report must be made by the public servant concerned or a superior public servant, and since the Mukhtiarkar and F.C.M. was subordinate to the District Magistrate who issued the order, the initiation of proceedings was legally flawed. The Court laid down the principle that proceedings or an F.I.R. under Section 188 of the Pakistan Penal Code instituted in violation of the bar contained in Section 195(i)(a) of the Code of Criminal Procedure are incompetent and liable to be quashed.
- Whether an FIR under Section 188 of the Pakistan Penal Code can be registered by a subordinate officer in violation of Section 195(i)(a) of the Code of Criminal Procedure?
- Can proceedings initiated under Section 188 of the Pakistan Penal Code on a complaint by a Mukhtiarkar instead of the District Magistrate be sustained?
- Is an FIR liable to be quashed if it fails to comply with the procedural requirements of Section 195 of the Code of Criminal Procedure?
- Section 188, Pakistan Penal Code 1860
- Section 144, Code of Criminal Procedure 1898
- Section 195(i)(a), Code of Criminal Procedure 1898
- Section 460, Pakistan Penal Code 1860
- Section 459, Pakistan Penal Code 1860
- Section 457, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
ORDER
1. ' Present applicants are seeking quashment of the F.I.R. No,40 of 2001 registered under section 188, P.P.C. By complainant namely Mushtaque Ali Solangi, Mukhtiarkar and F.C.M., Khanpur on behalf of the State.
2. ' In brief, the prosecution story as enunciated by complainant Mushtaque Ali Solangi, Mukhtiarkar and F.C.M., Khanpur vide F.I.R. No,40/2001 under section 188, P.P.C. Is, that S.D.M., Shikarpur vide his Order No,S.D.M/184, dated 19-2-2001 had imposed ban-en holding private 'Jirga' and Faisla under section 144, Cr.P.C. And such order was valid for sixty days with effect from 19-1-2001 to 19-4-2001. It is the case of prosecution that complainant came to know that at the Otak of Wadero' Fateh Muhammad Noon in village Sachal Noon, Dr. Muhammad Ibrahim son of Haji Aitbar Khan Jatoi being "Amin" in presence of two others namely Safdar Ali Jatoi and Abdul Ghaffar Mahr and witnesses of Faisala namely (1) Dil Murad, (2) Jaggan, (3) Sikandar and (4) Abdul Rahim, all by caste Sethar residents of village Bonn and so also in presence of complainant Sultan, witnesses and Mashirs of case namely Gullan Noon, Muhammad Rafique, Bashir Ahmed, Ashique Ali and (5)
3. Muhandro and absconding accused namely Dado, (2) Bago, (3) Ghulam Akber and others held faisla of robbery and murder case Crime No, 2001 Polcie Station Rustam under sections 460, 459, 457 and 380, P.P.C. As such, the "Amin" and all the participants of Faisla violated the ban imposed by S.D.M, Shikarpur under section 144, Cr.P.C. Hence the above F.I.R.
4. ' I have heard Mr. Aijaz Ali Shah, Advocate for the applicants and Mr. Altaf Hussain Surahio, learned counsel for the State. It has been contended by Mr. Aijaz Ali Shah, for the applicant that the F.I.R. Has not been registered by the competent person and it ought to have been registered by District Magistrate and the complainant Mukhtiarkar and F.C.M. Is not competent to register the F.I.R. And on this score the F.I.R. No, 40 of 2001 is liable to be quashed. In support of his contention he has placed reliance on a case Ghulam Rasool and others v. The State reported in 1998 PCr.LJ 584 and 585, wherein this Court has quashed the proceedings under section 188, P. P.0 .
5. ' On the other hand, Mr. Altaf Hussain Surahio, learned counsel for the State, has conceded the legal position and has submitted that is violation of section 195(i)(a) of Cr.P.C. The F.I.R. Ought to have been registered under section 188, P.P.C. By the District Magistrate, Shikarpur and not by Mukhtiarkar and F.C.M., Khanpur. He has also placed reliance on 1998 PCr.LJ 584.
6. ' I have considered the arguments rendered by the learned counsel for the parties and have gone through the material available on record. Admittedly the F.I.R. Has been registered under sectrion 188, P.P.C. By Mukhtiarkar and F.C.M., Khanpur. In view of section 195(i)(a), Cr.P.C. It ought to have been filed by superior officer and in the present case Mukhtiarkar and F.C.M. Is subordinate to District Magistrate, Shikarpur and there is violation of section 195(i)(a), Cr.P.C. The law cited by learned counsel for the applicants reported in 1998 PCr.LJ 584 and 585 is applicable in the present case. In view of the aforesaid legal position and the law cited by learned counsel for the parties the proceedings initiated on the basis of F.I.R. No,40 of 2001 against applicants stand quashed.
7. Applicants are on bail, their bail bond and surety stand discharged.
8. F.I.R. Quashed.