Malik MUHAMMAD AYOOB AWAN vs AKHTAR LODHI, S.H.O., POLICE STATION
This matter comes before the Sindh High Court via an application under section 561-A of the Code of Criminal Procedure 1898 seeking the quashment of criminal proceedings and an FIR registered under section 188 of the Pakistan Penal Code 1860. The core legal question concerns whether a Magistrate can take cognizance of an offence under section 188 of the Pakistan Penal Code 1860 on the basis of a police challan rather than a written complaint by the concerned public servant as mandated by section 195(1)(a) of the Code of Criminal Procedure 1898. The court held that despite the offence being cognizable, section 195(1)(a) explicitly bars a court from taking cognizance of offences under sections 172 to 188 of the Pakistan Penal Code 1860 except upon a written complaint by the public servant concerned or their superior. Since cognizance was taken on a police challan without the requisite written complaint, the proceedings constituted an abuse of the process of law. Consequently, the court allowed the application and quashed the pending proceedings.
- Can a court take cognizance of an offence under section 188 of the Pakistan Penal Code on a police challan without a written complaint?
- Does the lack of a written complaint by the concerned public servant under section 195(1)(a) of the Code of Criminal Procedure render proceedings under section 188 of the Pakistan Penal Code an abuse of the process of law?
- Is an offence under section 188 of the Pakistan Penal Code exempt from the complaint requirement of section 195 of the Code of Criminal Procedure simply because it has been made a cognizable offence?
- Section 561-A, Code of Criminal Procedure 1898
- Section 188, Pakistan Penal Code 1860
- Section 249-A, Code of Criminal Procedure 1898
- Section 4(h), Code of Criminal Procedure 1898
- Section 195(1)(a), Code of Criminal Procedure 1898
- Section 172, Pakistan Penal Code 1860
ORDER
1. ' This is an application under section 561-A, Cr.P.C. For quashment of proceedings (State v. Malik Muhammad Ayoob Awan) in F.I.R. No,131 of 1995 registered under section 188, P.P.C. Of Police Station Shah Faisal, pending in the Court of A.C. And S.D.M. Shah Faisal being Case No,73 of 1995.
2. ' The brief facts of the case are that on 19-6-1995 at about 10-45 hours S.H.O. Muhammad Akhtar Lodhi lodged report as F.I.R. No,131 of 1995 at Police Station Shah Faisal, stating therein that one T.T.
3. Pistol No,A-1687 alongwith magazine six- bullets loaded and 25 cartridges with licence No,1492 of 1991 were secured from applicant Muhammad Ayoob in presence of H.C. Liaquat Ali and Sher Muhammad and P.C. Qamar Zaman and he was asked to show the permit for carrying on said licensed pistol within the jurisdiction of District East Karachi, which was prohibited as per Order No,JB/E/OR/141/118, dated 22-5-1995 of the D.C., Karachi East under section 144, Cr.P.C. The applicant moved an application under section 249-A, Cr.P.C. For his acquittal but it was dismissed as per order dated 20-8-1996.
4. ' The contention of the petitioner is that the S.D.M. Has taken cognizance of the case on the basis of challan submitted by the police viz. S.H.O. Shah Faisal and there has been no complaint as required under section 4(h), Cr.P.C. He further submitted that under section 195(1)(a). No Court shall take cognizance of any offence punishable under sections 172 to 188 of Pakistan Penal Code except on the complaint in writing of public servant concerned or some other public servant to whom he is subordinate". Consequently, the proceedings before the S.D.M. Were not legal and amounted to abuse of process of law.
5. ' None has appeared for the State. So far as the legal position is concerned it is settled position that the cognizance of the said case could not be taken by the S.D.M. Concerned on the basis of challan initiated at the instance of S.H.O., Police Station Shah Faisal. Reference may be made to Yar Muhammad and 12 others v. The State 1988 PCr.LJ 2156 (Karachi), Ghulamullah v. The State 1993 PCr.LJ 1307, Haji Toofi Bashar v. The State 1993 PCr.LJ 1448 (Karachi), Syed Abdur Rehman Shah and 25 others v. The State 1996 PCr.LJ 483 (Peshawar), Mubashir and others v. The State 1994 PCr.LJ 2496 (Lahore), Sanaullah v. The State 1994 PCr.LJ 2552 (Lahore) and Raziuddin and others v. The State 1997 M LD 2532, in support of the contention that no such complaint could be registered by S.H.O. Police in view of the provisions contained in section 195(1)(a) of Cr.P.C. Section 195(1)(a) runs as under:--
(1) No Court shall take cognizance---
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except a complaint in writing of the public servant or some other public servant to whom he is subordinate."
6. ' Learned Judge in Chambers in Yar Muhammad and 12 others v. The State 1998 PCr.LJ 2156 has observed at page 2158 as under:-- ' "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."
7. ' In the case of Sharif and 4 others v. The State PLD 1975 Lah. 1215, it was observed 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."
8. In view of the above cited cases and the legal position, the proceedings of the instant case initiated by way of challan at the instance of S.H.O. Of Police Station Shah Faisal in absence of the complaint from. The D.C., who passed the order or any other person to whom he is subordinate would amount to abuse of process of law. In the circumstances, the proceedings of the instant case are quashed and the criminal miscellaneous application is allowed.