1978 PLP 1082 (PLD)

On the next date i.e. 8-8-1977, the statement of the complainant Riaz Ahmed (respondent) was recorded by the trial Magistrate and case was adjourned to 13-8-1977, for further proceedings. The order dated 8-8-1977. is reproduced below : (Sd.) M. I. C. 8-8-1977.' On the same day i.e. 8-8-1977, Riaz Ahmed respondent submitted an application praying that order for dasti summons of his witnesses be given to him. The following order was passed on the said application (Sd.) M. i. C. "" .,. 8-8-1977." On 13-8-1971. the statement of one witness, namely, Muhammad Anwar was recorded and for the remaining preliminary evidence, case was adjourned to 21-8-1977 in the following terms : (Sd.) M. I. C. 13-8-1977: ' On 20-8-1977, Riaz Ahmed respondent moved Criminal Miscellaneous No. 109/7/1977 under section 561-A, Cr. P. C. for transfer of the case to the High Court from the Court of the trial Magistrate. On 21-8-1977, this Court ordered that notice of that petition be issued to the present petitioner who was respondent in that petition. It was on the receipt of this notice that the petitioner claims to have acquired knowledge of the complaint filed against him before the Ilaqa Magistrate under section 295-A of Pakistan Penal Code and then he filed the present petition under section 561-A of Criminal Procedure Code for quashment of the said proceedings.

3. The main contention raised by Mr. Nasim Hassan, the learned counsel for the petitioner, is that the trial Magistrate has no jurisdiction to entertain and take cognizance of the complaint filed under section 295-A of Pakistan Penal Code by a private person (Riaz Ahmed respondent). Reliance in this behalf is placed upon section 196, Cr. P. C. which is reproduced below for ready reference : "

196. No Court shall take cognizance of any offence punishable under Chapter VI (or IX-A) of the Pakistan Penal Code (except section 127) or punishable under section 108-A, or section 153-A or section 294-A (or section 295-A) or section 505 of the same Code, unless upon complaint made by order of, or under authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments." According to this section the complaint under section 295-A of Pakistan Penal Code can be filed only by order of or under authority from the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. It is not denied that in the case of the Chairman, WAPDA, the Central Government will be the appropriate Government referred to in section 196, Cr. P. C. In the instant case it is an admitted fact that neither the Central Government has passed any order to make such complaint against the petitioner nor the said Government has authorised or empowered any officer in this behalf. The factual position is not denied by Mr. Barak Ullah Khan, the learned counsel for Riaz Ahmed respondent. He admits that the complaint against the petitioner under section 295-A, Cr. P. C., is not by order of or under authority from the Central Government or by an officer empowered in this behalf by the said Government to do so. He states that his client, Riaz Ahmed, respondent has filed this complaint in his private capacity. The learned defence counsel however, vehemently contends that no cause of action has accrued to the petitioner as no process has yet been issued against him and the trial Magistrate may dismiss the complaint after completing the preliminary evidence and, therefore, in such circumstances the question of taking cognizance at this stage does not arise. In other words according to the learned defence counsel, there is no legal bar under section 196, Cr. P. C. for the trial Magistrate to record the preliminary evidence before issuing process against the petitioner. According to him the Magistrate can be presumed to have taken cognizance in the matter only when he issues process against the accused (petitioner).

4. The first question which arises for consideration in this case is whether the trial Magistrate has jurisdiction to entertain and record preliminary evidence in a complaint under section 295-A, P. P. C. filed by a private person other than mentioned in section 196, Cr. P. C. A mere perusal of section 196, Cr. P. C. shows that a complaint by order of or under authority from the appropriate Government constitutes a condition precedent to the very institution of the proceedings under sections mentioned therein. Unless that condition is fulfilled, the trial Court, will have no jurisdiction to proceed with the matter and record even the preliminary evidence or issues summons to the witnesses. In other words the jurisdiction of the trial Court depends upon filing of the complaint by a particular authority mentioned in the section otherwise the whole object of section 196, Cr. P. C., to prevent unauthorised persons from intruding in State affairs by instituting State prosecutions, will be defeated. For the offences mentioned in section 196, Cr. P. C., it is for the appropriate Government alone to decide whether particular person should be prosecuted or not. In the instant case admittedly the appropriate Government (Central Government) has neither passed an order to file such complaint against the petitioner nor the said Government has authorised Riaz Ahmed respondent or any other officer in this behalf t do so. The result is that the present complaint against the petitioner under section 295-A, P. P. C. not having been filed by an appropriate Government as required by law but by an unauthorised person, the trial Magistrate will have no power to record the preliminary evidence. The proceedings before the trial Court are therefore clearly without jurisdiction.

5. Another question which arises for consideration is whether after entertaining a private complaint and recording statement of the complainant on oath and some other preliminary evidence or summoning the witnesses, the trial Magistrate has taken cognizance in the matter or not. I am clearly of the view that a Magistrate while recording the statement of a complainant on oath and of other witnesses as preliminary evidence and summoning the 'witnesses in a private complaint, does so consciously and therefore is an act which is done after taking cognizance of the offence. In other words in a private complaint recording statements of the complainant on oath and his witnesses as preliminary evidence and issuing summons to the witnesses is an act which succeeds and not precedes the taking of cognizance. Since taking cognizance of an offence under section 295-A, P. P.. C. in a private complaint filed by an unauthorised person, by the trial Magistrate is clearly prohibited by section 196, Cr. P, C., the trial Magistrate had no jurisdiction to record the statements of the complainant on oath and his witnesses as preliminary evidence or issues summons to the witnesses. In such circumstances it is immaterial whether process has been issued against the petitioner or not.

6. Mr. Barak Ullah, the learned counsel for Riaz Ahmed respondent has also argued that the trial Magistrate should be allowed to continue with the trial as he ultimately may come to the conclusion that the offence in fact falls under section 298, P. P. C. which is not hit by section 196, Cr. P. C. As shown above, Riaz. Ahmed respondent/complainant has filed this private complaint under section 295-A, P. P. C. and the trial Magistrate has to take it on its face value, as it is, without entering upon an inquiry into, the allegation whether ultimately the offence falls under section 295-A, P. P. C. o 298; P. P. C. In other words, the trial Court is not concerned with the ultimate result of the inquiry or the trial has to proceed according to the offence mentioned in the complaint. Conversely if a clever person wrong files a complaint under section 298, P. P. C. while in fact the 05eW ~ falls under section 295-A, P. P. C., in such situation the trial Court c ~a proceed with the waiter and also record the evidence but the moment the Court reaches the conclusion that in fact the case is covered by section 295P. P. C., the trial Magistrate will at once stay his hands and dispose of the matter as such as his jurisdiction in such an offence is clearly barred b section 196, Cr. P. C.

7. For the foregoing reasons, I have reached the conclusion that the trial Magistrate has no jurisdiction to take cognizance and proceed further with the complaint under section 295-A, P. P. C. filed before him by Riaz Ahmed respondent in his private capacity which is barred by section 196, Cr. P. C. Since the trial Court has got no jurisdiction to proceed further with the complaint, the proceedings cannot be allowed to continue. Accordingly I quash the proceedings pending before the trial Magistrate against the petitioner under under section 295-A, P. P. C. s. A. H. Proceedings quashed.