1991 PLP 1172 (MLD)

Muhammad Siddique Chughtai for Petitioner. Shawar Khilji for the State. Date of hearing: 11th February, 1991. Muhammad Sharif petitioner had lodged F.I.R. under sections 13 and 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, against Muhammad Siddiq at Police Chauki Kotli Loharan, District Sialkot. During the investigation, the allegations were found false, so the case was cancelled. On this Ata Muhammad A.S.I. Incharge Police Chauki, Kotli Loharan, drafted a report under section 182 of the P.P.C. and forwarded the same to the Superintendent of Police, Sialkot, which was marked to the P.D.S.P. who on 27-4-1982, passed the following order:

When this report was produced before the Magistrate, he passed the following order on it:-- On this, the accused was summoned. The charge was framed and the witnesses were examined. Ultimately, the accused was convicted and sentenced to imprisonment for three months' R.I.

2. The learned counsel for the petitioner submits that offence under section 182 of the P.P.C. was/is not cognizable; that the report of A.S.I., Police Chauki Kotli Loharan on which the Magistrate has taken cognizance and sentenced the accused was not addressed to the Magistrate. It was sent to the S.P. and, as such, there was no valid complaint.

3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. The word "complaint" has been defined in clause (h) of section 4 of the Cr.P.C., which may be re-produced advantageously:-- S.4(h):

'Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer." The bare reading of the provisions of law reproduced above will show that for a valid complaint, it was very much necessary that the report or the allegations should have been addressed to the Magistrate and not to the Superintendent of Police or any other police officer. The order written by the P.D.S.P., that will not constitute a valid complaint within the definition of "complaint" given in clause (h) of section 4 of the Cr.P.C. Since there was no valid complaint, so the Magistrate could neither take cognizance on the report of the A.S.I. nor could he proceed further in the matter. This being the position, the entire proceedings must tumble down:

4. For what has been said above, this revision is accepted. The conviction and sentence is set aside and the petitioner is acquitted of the charge. He is on bail. He stands discharged of his bail bond. N.H.Q,./M-2726/L????????????????????????????????????????????????????????????????? Revision accepted.