1997 PLP 2532 (MLD)

This is an application under section 561‑A, Cr.P.C. for quashment of, proceedings State v. Riazuddin and another in a Case No.88/96 registered under section 188, P.P.C. as per F.I.R. No.113/96 of P.S. Malir City, Karachi pending before SDM, Malir Karachi. Brief facts of the case are that on 6‑8‑1996 one Head Constable lodged F.I.R. No. l 13/96 tinder section 188, P.P.C. at P.S. Malir stating therein that he alongwith other police constables was on patrolling duty in private Suzuki when he received information that some persons were issuing receipts and were receiving money from the businessmen in Bakra Piri when the SDM, Gadap had imposed ban upon issuance of any receipt and collection of money under section 144, Cr.P.C. in the area. The said Head Constable Muhammad Ilyas alongwith his party reached the spot and apprehended the applicants and registered the case against them. After usual investigation the police submitted the challan before the SDM, Gadap where the applicant moved an application under section 249‑A, Cr.P.C. for acquittal of the applicants but no order was passed thereon therefore the applicants have approached this Court as the said proceedings before the said Magistrate amounted to abuse of process of law. The contention of learned counsel for the , applicants is that SDM, Gadap has taken cognizance on the basis of challan submitted by the police and there has been no complaint as required under section 4(h), Cr.P.C. He further submits that under section 195 subsection (1)(a) "no Court shall take cognizance 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 same other public servant to whom he is subordinate". Accordingly, the proceedings before the S.D.M. were not legal and amounted to abuse of process of law. Learned counsel has placed reliance upon Yar Muhammad and 12 others v. The State (1988 PCr.LJ 2156, Karachi); Ghulamullah v. The State (1993 PCr.L1 1307 Karachi); Haji Tooti Bashar v. The State (1993 PCr.LJ 1448 Karachi); Syed Abdul Rehman Shah and 25 others v. The State (1996 PCr.LJ 483 Peshawar); Mubashir and others v. The State (1994 PCr.LJ 2496 Lahore) and Sanaullah v. State (1994 PCr.LJ 2552 Lahore) in support of his contention. Learned counsel for the State concedes the legal position that proceedings could not be taken before SDM on the basis of challan submitted by the police. The State Counsel submits that cognizance could be taken only on the complaint to be lodged by District Magistrate or any other person authorised by him. Section 195 (1) (a) runs as under:‑‑ "(1) No Court shall take cognizance‑‑ (a) of any offence punishable under sections 172 to 188 of 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. " Learned Judge in Chambers in Yar Muhammad and 12 others v. The State (1988 P.Cr.L.J. 2156) has observed at page 2158 as under:‑‑ "Although section 188 has been made cognizable, but there is no amendment in section 195, Cr.P.C. and, therefore, the cognizance could only be taken on the complaint filed by the person concerned or by the person to whom he was subordinate. In the case of Sharif and 4 others v. The State PLD 1975 Lah. 1215 it was observed: "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 necessary 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." In the rest of reported cases cited by learned counsel for applicants, same view has been taken and i; has been held that the proceedings could not be initiated by way of challan at the instance of police officer and the same amounted to abuse of process of law. In the circumstances the continuation of the proceedings before the S.D.M. would amount to abuse of process of law consequently the same are quashed and this criminal miscellaneous application is allowed. N.H.Q./R.26/K Proceedings quashed.