1995 PLP 1803 (MLD)

Raza Abbas Naqvi for the State. Date of hearing: 11th June. 1995. This is an application under section 561‑A, Cr.P.C. for quashment of proceedings pending in the Court of learned Magistrate, Karachi, West, against the applicants under section 188, P.P.C. in pursuance of F.I.R. No.53/1995 of Police Station Surjani Town, registered on 4‑5‑1995. According to said F.I.R., the applicants namely, Jan Muhammad, Mir Muhammad, Oasim, Muhammad A Rafiq, Muhammad Khan, and Muhammad Qasim Gabol son of Adam Khan, had occupied Government land in violation of order of District Magistrate, Karachi, West, passed under section 144, Cr.P.C. Learned counsel for the parties submitted that instead of deciding the miscellaneous applications fixed today for hearing, the main application on merits be disposed of. Accordingly, this application is admitted to regular hearing and is being disposed of on merits. The contention raised on behalf of the applicants is that a criminal Court is not competent to take cognizance of the offence under section 188, P.P.C., unless a complaint is made by an Officer under section 195(1)(a) of 13 Cr.P.C., whose order has been violated and the cognizance of offence, under section 188, P.P.C., on Police Report, is unwarranted. In order to appreciate the contention, I think it would be useful to reproduce the definition of complaint, as given in section 4(1)(h) of Cr.P.C. It is as follows:‑‑ "(h) "Complaint".

"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." Learned State Counsel on the other hand submitted that the offence, under section 188, P.P.C. has been made cognizable by an amendment in Schedule II of the Criminal Procedure Code, as per Notification dated 14th March, 1969 under section 10(1) of the Criminal Law Amendment Act, 1932, (PLD 1969 Provincial Statutes, p.52) and the police, as such, is entitled to investigate the case. Before dealing the main contention, it is necessary to find out the real meaning of the term complaint. In the case of Barkat and another v. Emperor, reported in AIR (30) 1943 All. 6 it was observed that the terms "complaint" as defined in the aforesaid section does not include the report of the Police officer and that the term "complaint" in section 195 is not used in technical sense as is defined in section 4(1)(h). This view, however, was not accepted by the Full Bench in the case of Bar Association v. Crown reported in PLD 1953 BJ 33, wherein it was held that different meaning cannot be given to the word complaint from the one given in section 4(1)(h). Thus, the settled law, now, is that the complaint and Police Report are two different terms and carry different meanings. This clarification is necessary for the examining scope of section 195(1), Cr.P.C. which is as follows:‑‑ "No Court shall take cognizance‑‑‑ (a) 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 some other public servant to whom he is subordinate;" Mr. Gul Zaman Khan learned counsel for the applicants argued that, despite the fact that the offence under section 188, P.P.C. has been taken away from the category of non‑cognizable cases and placed in the category of cognizable cases, yet, the complaint as required under section 195, Cr.P.C. from the public servant concerned, is necessary. In support of this contentions he cited (1) Bar Association v. Crown PLD 1953 BJ 33, (2), Sharif v. The State PLD 1975 Lah. 1315, (3) Emperor v. Ganesh Vasudeo Mavlankar and others AIR 1931 Bom. 135 and (41 Mst. Lachmi Devi and others v Emperor AIR 1931 Cal.

122. In the Bar Association's case, some persons were convicted on their plea of guilt for violating an order promulgated by District Magistrate, Bahawalpur under section 144, Cr.P.C. and were sentenced to one month's simple imprisonment each. The case was referred to the Full Bench, inter alia, to examine the point that what was the effect of Bahawalpur Government Notification No. 27, dated 3rd June, 1947 on provisions contained in section 195, Cr.P.C., as far as it concerned the necessary of a complaint by the public servant whose order was violated, as the said notification was issued in exercise of power conferred by clause 2 of section 82 of the Bahawalpur State Public Security Act, 1944, whereby the Bahawalpur Government declared that the offences punishable under sections 186 and 188‑‑‑ when committed within the jurisdiction Bahawalpur Government, shall be cognizable and non‑bailable and that the Code of Criminal Procedure shall be deemed to be amended accordingly. The Full Bench having taken into consideration various cases, including some from Indian jurisdiction, reached the conclusion that the Police report does not tantamount to a complaint and a Magistrate can take cognizance of an offence under section 188, P.P.C. only on a complaint and not on police report, and that said notification did not abrogate the requirements of the provisions of section 195, Cr.P.C. In Sharif's case, also the offence under section 188, P.P.C. was made cognizable and since no amendment was made in the corresponding section 195(1)(a), Cr.P.C, it was held that the Magistrate could not take cognizance of a case under section 188, P.P.C. unless and until the concerned officer filed the complaint before the concerned Magistrate. In Ganesh Vasudeo Mavlankar's case, the view taken was that in spite of the facts that section 188, P.P.C. was made cognizable, yet, the requirements of section 195, Cr.P.C. were not abrogated. Similar view was taken in the case of Mt. Lachmi Devi where in it was observed that merely by making an offence under section 188, P.P.C. cognizable and non‑bailable the necessity of making a complaint by the concerned police servant was 69t dispensed with. The general rule is that any person, having knowledge about the commission of an offence, in which he may or may not be interested personally, may set the law in motion. Sections 195 to 198, Cr.P.C. are exceptions to this Rule. Section 195 prohibits a Court from taking cognizance of certain offences unless the complaint has been made by the public servant concerned. The object of said section is, that the offences therein referred, shall not be deemed to be any offences at all, except on the complaint of the person concerned. When the offence under section 188, P.P.C. is made cognizable, it only means that the police can arrest a person alleged to be guilty of said offence without a warrant and make investigation into the offence. This, however, does not affect the provisions of section 195(1)(a), Cr.P.C. which continue to remain operative as before. It being so, this application is allowed C and the proceedings pending before said Magistrate are quashed. Learned District Magistrate, Karachi, West however, would be at liberty to file a complaint under section 195(1)(a), Cr.P.C. and if so is done the proceedings against the applicants can be started again. N.H.Q./J‑186/K Proceedings quashed.