ABDUL NABI and anothers vs Syed MUKHTAR and anothers

ORDER

1. ' This order will dispose of the application under section 561-A, Cr.P.C. For quashment of criminal proceedings bearing case No,33 of 1997 pending in the Court of Judicial Magistrate, Jacobabad.

2. ' The facts giving rise to the present application are that a civil Suit bearing No,5 of 1998 was filed between Sikandar Ali and others and respondent No,1 and others in the Court of IInd Senior Civil Judge, Jacobabad. During the proceedings. It appears, that the order of the Civil Court was allegedly violated therefore, an application under Order 39, rule 3, C.P.C. Was filed in which the present petitioners had sworn affidavits. The Civil Court dismissed the application under Order 39, rule 3, C.P.C. Thereafter, the respondent No,1 filed direct complaint under sections 191, 199, 200, 193 read with section 34, P.P.C. Before Civil Judge and 1st Class Magistrate alleging that the petitioners had sworn false affidavits. A preliminary inquiry was conducted. Thereafter the matter was transferred to Judicial Magistrate, Jacobabad who on 24-5-1990 after going through the material available on the record issued process against the petitioners for an offence punishable under sections 199 and 200 P.P.C. Subsequently, the petitioners moved an application under section 249- A, Cr.P.C. Before the trial Court but the same was dismissed. A revision application was preferred before the Sessions Court but the same was also dismissed on 19-1-2002 by the 1st Additional Sessions Judge, Jacobabad.

3. ' The petitioners were dissatisfied with the said order therefore, they have preferred the present petition.

4. ' I have heard the Advocate for the petitioners and Assistant Advocate-General for the State. The respondent No,1 is absent. He is an Advocate but since 1st two hearings he failed to appear before the Court and was either sending telegram or sending application for adjournment. Today he is absent without any intimation or justification.

5. ' The learned Advocate for the petitioners has stated that the respondent No,1 was not competent to file direct complaint for an offence punishable under sections 199 and 200, P.P.C. And that, the Magistrate had no jurisdiction to take cognizance on such complaint, in view of provisions of section 195(1)(b), Cr.P.C. Under which the Magistrate can take cognizance only on complaint of the Court before which the offences were committed or its superior Court. He has relied upon the following authorities.

6. ' (1) Noor Muhammad v. The State PLD 2002 Lah 183, (2) Haji Muhammad Aslam v. Inspector- General PLD 2001 Lah. 84, (3) Ali Ahmad v. The State 1984 PCr.LJ 772.

7. ' He has further stated that continuation of proceedings before the Judicial Magistrate is abuse of process of Court therefore, the same may be quashed.

8. ' Mr. Ali Azher Tunio learned Assistant Advocate-General has conceded the legal position and has stated that section 195(i)(b), Cr.P.C. Is mandatory provision under which the Magistrate can take cognizance only on complaint of the Court before whom the said offences were committed or the Court superior to such Court, and that the private person cannot file complaint of such offences. He has not supported the impugned order. .

9. ' I have given due consideration to the arguments and find that the contentions raised by the learned Advocate for the petitioner have great force. Section 195(1)(a)(b), Cr.P.C. Reads as under:--

(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;

(b) of any offence punishable under any of the following sections of the same Code, namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in. Or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

10. ' A plain reading of above section reveals that for offences punishable under sections 199 and 200, P.P.C. No cognizance can be taken by any Court except upon a complaint in writing of such Court where the said offences were committed or some other Court to which such Court is subordinate.

11. The provisions of section 195, Cr.P.C. Are mandatory. In a case of Mansab Ali v. The State reported in PLI) 1971 SC 124. It has been observed as under:-- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction..."

12. ' In view of section 195(1)(b), Cr.P.C. The private person has no authority to file a complaint therefore, the Magistrate had no jurisdiction to take cognizance of such complaint. According to law ordinarily any person can prefer complaint but section 195, Cr.P.C. Is exception to general rule of the character of certain offences as affecting the lawful authority of public servants or public justice. The right to prosecute t. Nder the relevant sections has been restricted and Courts are prohibited from taking cognizance of the offences mentioned therein unless and until the public servants or the Courts directly concerned or their superior officers or Court themselves make the complaint. The principle under relying section 195 is that in regard to offences mentioned therein private prosecutions are absolutely barred.

13. ' In view of above position, the continuation of proceedings before the Judicial Magistrate is abuse of process of Court therefore, the proceedings are quashed, the application is allowed.