P L D 2001 Peshawar 89 (PLP)

(e) Criminal Procedure Code (V of 1898)

Ss. 439, 561-A & 195

Penal Code (XLV of 1860), S.186

Quashing of proceedings

Only normal and genuine proceedings would be protected and could not be interfered with by High Court under its revisional or- inherent jurisdiction

Proceedings which were neither normal nor prima facie genuine, being in utter violation of mandatory provisions of S.195, Cr.P.C., were absolutely void

High Court accepting petition quashed the said proceedings declaring the same completely without jurisdiction and void ab initio. PLD 1992 SC 353 and 1996 SCMR 839 ref. Mushtaq Ali Tahirkheli for Petitioner. Muhammad Ayub Khan, Asstt. A.-G. for the State. Fazle Gal for the Complainant. Date of hearing: 21st May, 2001. This is a petition under section 561-A, Cr.P.C. invoking the inherent jurisdiction of this Court for quashment of a case against Sanaullah Khan petitioner under section 186, P.P.C. arising out of F.I.R. No. 80 dated 9-6-1999 of Police Station Ghazi and pending in the Court of Sub-Divisional Magistrate, Ghazi.

2. The background of the case is, that Fazlur Rehman, a Line Superintendent Passco Ghazi, was to recover a sum of Rs.16,112 as that of electricity consumption from Sahib Shah of Topi, who happened to be tenant of Sanaullah Khan petitioner in a shop located in Ghazi 'Bazar. He was accompanied by one Kamran, a lieutenant of the Army. While looking for the tenant Sahib Shah, they happened to contact Sanaullah Khan, the petitioner-landlord and asked him about the whereabouts of his tenant. During query, the parties happened to exchange hot words which was considered to be insulting and hence Fazlur Rehman, Line Superintendent filed a complaint before S.H.O. Police Station Ghazi (Annexure 'A') F.I.R. No.80 aforesaid was thus, registered under section 186, P.P.C.

3. The simple assertion of the learned counsel for the petitioner was, that under section 195 of the Cr.P.C., read with section 476 thereof, no Court could take cognizance of any offences punishable under sections 172 to 188 of the P.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. That, this was strictly to be a complaint under section 200, Cr.P.C. and further that such provisions of law were mandatory in nature.

4. In support of his argument, the learned counsel relied upon 1993 PCr.LJ 767 of Karachi jurisdiction, 1997 MLD 2097 of Lahore jurisdiction and 1998 PCr.LJ 87 again from Karachi jurisdiction, wherein, it was consistently held that the provisions of section 195, Cr.P.C. are mandatory in nature. Even the plain reading of section 195, Cr.P.C., would indicate that it starts with negative words as well as using the word "shall". It is a settled principle of law that any section commencing with negative' terminology, is always mandatory over and above the fact that the word "shall" followed the negative expression in addition.

5. After going through the text as well as case law on the subject, I strictly believe as well as hold that in case of offence under section 186, P.P.C., the complainant was bound to file a complaint under section 200,' Cr.P.C. and the matter could not be taken cognizance of either by the S.H.O. or by the trial Court and further that a challan under section 173, Cr.P.C. cannot at all be equated with a complaint under section 200, Cr.P.C. The trial Court suffers from total absence of jurisdiction because it was not capable of even taking cognizance of the matter, muchless the holding of trial.

6. In a case that ought to have been initiated through complaint under section 200, Cr.P.C., the petitioner-accused was physically taken by the complainant to the police station alongwith complaint, meaning thereby, that it was so taken with the exercise of power beyond jurisdiction and obviously by undue influence. The proceedings are mala fide as well.

7. Learned counsel for the respondent, by referring to the record of the case, took the stance that the accused, after the rejection of his application under section 249-A, Cr.P.C., had completely surrendered to the jurisdiction of the trial Court and hence is barred to challenge the same in any manner. This argument is not at all tenable because once a Court suffers from total lack of jurisdiction, any proceedings initiated by it, are void ab initio, no matter if somebody surrenders to its jurisdiction or not. There is no estoppel in law and that too when the liberty of a person is involved.

8. Learned counsel for the respondent placed reliance on PLD 1992 SC 353(b) where it was held, that if trial is prima facie genuine, it should not be allowed to deflect by exercising revisional or inherent jurisdiction. The point of law is not identical because, in the instant case, the trial is absolutely void and cannot be dubbed as genuine prima facie. 9. 1996 SCMR 839(b) is further relied upon which lays down that, normally every case should be allowed to proceed in accordance with law and should not be interfered with under revisional or inherent jurisdiction of the High Court. This also aims at protecting those proceedings which are normal in nature or which are prima facie genuine, as held in PLD 1992 SC 353(b). But, in the instant case, the proceedings are neither normal nor prima facie genuine, being in utter violation of the mandatory provisions of section 195, Cr.P.C.

10. Consequently, the quashment petition is accepted and the criminal proceedings under section 186, P.P.C., arising out of F.I.R. No.80, dated 9-6-1999 of Police Station Ghazi and pending before Sub-Divisional Magistrate Ghazi, are hereby declared to be completely without jurisdiction and void ab initio. The petitioner Sanaullah Khan is absolved of any liability arising from any bond, if submitted. H.B.T./292/P Petition accepted.