1993 P Cr (PLP)

Abdul Hakeem Bijarani, AA. -G. for the State. Date of hearing: 1st November, 1992. The question that has been raised in this application filed under section 561-A, Cr.P.C., relates to the interpretation of section 195, Cr.P.C.

2. It is alleged that the applicants made an application to Deputy Inspector-General Police, Karachi, alleging therein that on 5-10-1985 the respondent No.l came to Yousuf Plaza alongwith a police officer, who abused all the tenants of the said Plaza asking them to vacate the building. This application was forwarded to S.H.O. Kharadar Police Station who entrusted it to Muhammad Nazir S.I.P. The inquiry revealed that the application sent by the applicants to Deputy Inspector-General of Police,. Karachi was false and it was made with intent to cause injury to respondent No.l. Consequently on 4-1-1987 the S.H.O. Kharadar Police Station filed a report against the applicants in the Court of Assistant Commissioner and S.D.M. City, Karachi, for action under section 182, P.P.C. The applicants appeared before the Magistrate and filed an application under section 249-A, Cr.P.C. seeking their acquittal. This application was allowed on 30-4-1988 and as a result thereof all the applicants were acquitted. The respondent No.l challenged this order in Criminal Revision No.69 of 1988, which was heard by learned VIth Additional Sessions Judge (South), Karachi, who allowed it vide judgment dated 30-7-1992 and remanded the case for trial, hence the present application filed under section 561-A, Cr.P.C.

3. I have heard Mr. Jawaid Haider Kazmi, learned counsel for applicants, Mr. Muhammad Saleem Thepadwala, learned counsel for respondent No.1, and Mr. Abdul Hakeem H. Bijarani, learned AA.-G. for State.

4. Section 195(1), Cr.P.C. lays down that 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) .. (c) ......................................

5. The object of this section is to prevent improper and reckless prosecutions by private persons for offences relating to administration of justice in order to give vent to their private vendetta. The provisions of this section are mandatory and the Court has no jurisdiction to take cognizance of the offences mentioned therein (sections 172 to 188, P.P.C.) unless there is a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Admittedly the application was sent by the applicants to Deputy Inspector-General Police, Karachi. The complaint for the offence under section 182, P.P.C. against the applicants could have been filed by the Deputy Inspector-General Police, Karachi, or by Inspector-General of Police, Sindh, Karachi, and by none else. The cases of-Malik Muhammad Sadiq v. The State reported in 1977 P Cr. L J 445, Nasim. Akhtar Soofi v. The State reported in 1990 P Cr. L J 336 and Ch. Muhammad Hafeez v. The State reported in 1991 P Cr. L J Note 281 at page 198, are direct authorities on this point. I may usefully borrow a passage from Nasim Akhtar Soofi's case referred above, in which some relevant observations have been made in the following words:-- "In Mansab Ali's case, above referred, the Supreme Court of Pakistan has observed that if a mandatory condition for the exercising of jurisdiction by a Court, Tribunal or Authority is not fulfilled the entire proceedings which follow are rendered illegal and suffer from want of jurisdiction. That principle squarely applies to this case."

6. Mr. Muhammad Saleem Thepdawala, learned counsel for respondent No.l has invited my attention to the case of Muhammad Boota Anjum v. The State reported in 1990 P Cr. L J 1538, wherein a learned Single Judge of Lahore High Court has taken a contrary view in the following words:-- "The application was moved by the petitioner before S.S.P. who, without taking any action sent it to the concerned S.H.O. In these circumstances, the S.H.O. was the competent person to take action against the petitioner under section 182, P.P.C."

7. With profound respect to my learned brother, the provisions of section 195(1)(a), Cr.P.C. were completely overlooked in this order. As the law stands, it is difficult to follow the above view.

8. As a result, the proceedings pending against the applicants in the Court of Assistant Commissioner and S.D.M. City (South), Karachi, under section 182, P.P.C., are quashed. The application made under section 561-A, Cr.P.C., is accordingly allowed. N.H.Q./H-351/K Application allowed.