1983 P Cr (PLP)

Mr. Bhajandas, who appeared on behalf of the petitioner made the following submissions:- (1) That the impugned order passed by the Sub-Divisional Magistrate, Mirpur Mathelo is not supported by any reasoning. (2) That the learned Sub-Divisional Magistrate while passing the said order has not applied his mind. (3) That the petitioner was not afforded any opportunity of showing cause before instituting the pending proceeding against him. (4) That since the petitioner has filed direct complaint after being dis satisfied with the police action and direct complaint is still pending, the pending proceedings are not maintainable. (5) That the learned Sub-Divisional Magistrate has acted mala fide, as the petitioner has filed suit against him which is also pending. In order to appreciate the first two contentions raised by the learned counsel, I may reproduce the order made by the learned Sub-Divisional Magistrate. It reads as under :- "Perused the police papers. The summary as cancelled false is hereby ordered. The action under section 182/211, P. P. C. be taken against the complainant Muhammad Murad as recommended by S. H. O., P. S. Mirpur Mathelo vide his report No. 4 dated 30-9-1978." 1t would appear from the order that after perusal of the police-papers, the learned Magistrate ordered for summary as "cancelled false", directing A further that action under sections 182, 211, P. P. C. be taken against the complainant Muhammad Murad. Obviously, the learned Sub-Divisional Magistrate has acted mechanically by accepting the recommendations of the police. It seems, be has not applied his mind, as his order is not supported by any reason. As the police report was laid before him in his judicial capacity as Sub-Divisional Magistrate, he was expected to pass a speaking judicial order. He could do that only by going deep into the report. The learned Sub-Divisional Magistrate should have discussed the report threadbare and evaluated it in the light of the material which bad been used for its compilation. After considering the case from all angles, the learned Sub -Divisional Magistrate was to draw his own independent conclusions regardless of what the police had recommended. In either case, it was essential for him to give reasons, to justify the conclusions so reached by him. Since discretion was vested in learned Sub-Divisional Magistrate, he could even make an order, directing the police contrary to their recommendations to put up a challan in the Court of law. Therefore, to enable the higher Court to appreciate that the discretion vested in him had been exercised judiciously, the learned Su Divisional Magistrate had to give reasons in support of his order. B instead he has passed the order mechanically giving the police what they had asked of him. The impugned order is no order in the eye of law and it is accordingly not sustainable. In this connection reference may be made to the case of Taj Muhammad and another v. The State (1980 P Cr. L J 1003), wherein it was observed by Abdul Hayee Quraishi, J. (as he then was) For a prosecution under section 211 or 182, P. P. C. it has to be affirma tively shown by strong evidence that the case is false. The mere fact of the case failing for insufficiency of material or for lack of corrobora tion would not lead to the conclusion that the else is false." The next submission made on behalf of the petitioner was that the impugned action could not be taken without first giving him show -cause notice. In support of his contention, reliance was placed on Sarwar Begum v. The State (1974 P Cr. L J Note 114 at p. 73), Khan Ghulam Kadir Khan Khakwani v. A. K. Khalid (P L D 1960 (W. P.) Lah. 1039) and Mian Fazal Ahmed v. The State (P L D 1970 Lah. 726). In the case of Sarwar Begum, it was observed by K. M. A. Samdani, J. "Even if the truth or falsity of the information given to police is not judicially determined before the informant is called upon to answer the charge of giving false information, he is at least entitled to a show-cause notice before a complaint under section 182, P. P. C. is filed against him." In the case of Khan Ghulam Kadir Khan Khakwani, B. Z. Kaikaus, J. of Lahore Bench of West Pakistan High Court was of the view that if a person is directed to show cause why a complaint under section 180, P. P. C. should not be filed against him and he pleads that he had made the report under misapprehension, he is entitled to lead evidence to that effect and a complaint can be lodged only after the Magistrate came to prima facie conclusion that the information given was deliberately false. In the third case of Mian Fazal Ahmed, it was held "under the Law police cannot cancel a case without the order of a Magistrate and it is for the Magistrate to' accept or reject the police recommendation. Under law, a person laying information with Police is entitled to have his case judicially determined before he is called upon to answer to the charge of giving false information." From the above authorities, it is clear that before any action is taken under section 182 or 211, P. P. C., it is necessary to show-cause notice to the accused against whom the proposed action is to be taken. I am in respectful agreement with this view and hold that in the instant case also before filing the case under sections 182/211, P. P. C., against the petitioner, he should have been afforded an opportunity to show cause why the proposed action should not be taken against him. Accordingly, the argument of the learned counsel in this connection is not without force. The next point urged by the learned counsel for the petitioner was that since aggrieved by the police action, the petitioner filed direct complaint which is still pending, the impugned proceedings are obviously premature and are not legally maintainable. To support of his view, he has referred to the case of Ashfaq Ali v. The State (P L D 1975 Kar. 87). It was contended in the above reported case that as the direct complaint was still pending, it could not be said that the information given by the applicant to the police could be known or believed by him to be false. It was further contended that since the complaint had been filed, the prosecution against the applicant, if any, was to be made on the complaint of the Court concerned. In that context, reference was also made to the case of Ramchand v. Emperor (30 Cr. L J 399). In view of these contentions, the revision applications were allowed and proceedings pending against the applicants were quashed. On the same point the learned counsel also cited another authority of Lahore High Court Muhammad Ikram Qureshi v. Mairaj and 3 others (1977 P Cr. L J 437), wherein the view taken was that if the complainant's case was disposed as false by police and he aggrieved by such action filed a direct complaint, the petitioner's prosecution under section 182, P. P. C. on charge of getting a false case registered was not warranted during the pendency of petitioner's complaint and consequently the proceedings were quashed. The learned State counsel was also constrained to concede that in view of the fact that the direct complaint filed by the petitioner in respect of the same incident which formed the basis of the police case has not yet been disposed of, the impugned proceedings are premature and cannot be legally supported. The principle that emerges from the above authorities is that so long the petitioner's direct complaint is pending in Court, no action could be taken against him under section 182, or section 2111, P. P. C. It is only after his complaint is disposed as false that, the Court concerned can direct tiling o complaint against the petitioner under section 211, P. P. C. The last point urged by the learned counsel for the petitioner was that the order of the learned Sub-Divisional Magistrate was mala fide. In proof of this allegation, he has produced a copy of the plaint in the F. C. Suit No. 4 of 1981 which has been filed by him in the Court of Senior Civil Judge, Ghotki. In the said suit, the petitioner Muhammad Murad figures as Plaintiff, while the Assistant Commissioner, Mirpur Mathelo (Sub-Divisional Magistrate Mirpur Mathelo) is arrayed as one of the five defendants. It appears from the plaint that it was filed on 9th March 1981, whereas the impugned order of the learned Sub-Divisional Magistrate, Mirpur Mathelo is dated 10th March, 1981. The learned counsel submitted that the impugned order which had been passed only nine days after the institution of the suit in which the learned Sub-Divisional Magistrate was made a party was clearly the result of the learned Sub-Divisional Magistrate's annoyance. It was pointed out by the learned counsel that even though the police had approached the learned Sub-Divisional Magistrate for 'B' Summary as far back as 1978, the matter was kept in cold storage for three years and it was all of sudden that the learned Sub-Divisional Magistrate deemed fit to pass the impugned order only nine days after his involvement in the aforesaid suit. It appears, the argument is not totally devoid of any substance. In view of above discussion, the proceedings pending against the petitioner in the Court of Sub-Divisional Magistrate, Mirpur Mathelo are not sustainable and are accordingly quashed. Petition accepted.