1994 P Cr (PLP)

Mumtaz Ali Siddiqui for Applicant. Abdul Sattar Chohan for A.A.-G. for the State. Date of hearing: 1st November, 1993. This application for quashment of proceedings has been filed on behalf of applicant Baharuddin under section 561-A, Cr.P.C. for quashing the order dated 22-2-1993 passed by the learned Additional City Magistrate, Sukkur convicting the applicant to suffer R.I. for 10 days and to pay fine of Rs.100 or in default to suffer simple imprisonment for two days more under section 188, P.P.C. The applicant was convicted on his plea of guilt. He had filed an appeal before the Sessions Judge, Sukkur being Criminal Appeal No.9 of 1993, but the learned Judge upheld the order of the learned lower Court, as such the applicant has filed this criminal miscellaneous application before this Court. The brief facts of the case are that on 6-2-1993 at about 6-15 p.m. Phataqa (explosive material) was alleged to have been secured from the shop of the applicant situated at Tobacco Bazar, Sukkur. The applicant was arrested for offence under section 188, P.P.C. for violation of Order No.138 passed by the S.D.M. under section 144, Cr.P.C. on 25-1-1993 prohibiting sale etc. of fire works within the limits of Sukkur Sub-Division. The applicant was challaned in the Court of A.C.M., Sukkur on 13-2-1993 and was convicted on 22-2-1993 on his plea of guilt. The main contentions raised by the learned counsel for the applicant are that the order under section 144, Cr.P.C. was promulgated by the learned S.D.M. with effect from 25-1-1993 for a period of 30 days, but the F.I.R. has been lodged by Sub-Inspector Muhammad Aslam Rajput of B Section Police Station, Sukkur on behalf of the State in his own name. He has contended that according to law, the learned S.D.M. should have himself become the complainant in this case, as is required under the law and, as he has not filed the said complaint, the proceedings based on the F.I.R. registered by the police and subsequently pleading guilty by the applicant before the Magistrate are illegal and without any legal effect. He has further contended that the appeal was filed before the learned Sessions Judge, but this point was not even considered by the learned Sessions Judge. He has further contended that plea of guilt recorded by the learned trial Court was not properly recorded. He has further contended that according to section 195(1)(a), Cr.P.C. the public servant concerned has to file complaint or by a person to whom he is subordinate and no Court shall take cognizance under section 195(1) without it. According to him in this case the proceedings were initiated on report filed by the S.H.O. at police station without any authority of the S.D.M. concerned, who had passed the order under section 144, Cr.P.C. Learned counsel for the applicant has further relied upon 1992 P Cr. L J 1575 and has urged that the accused was even not represented by some advocate at the time of recording o his plea of guilt. He has further contended that the plea of guilt has also not been properly recorded by the learned trial Magistrate. According to the principles mentioned in the abovesaid judgment, he has contended that the plea should have been recorded in the form of questions and answers in the A exact words of the accused in order to find out what the accused exactly meant by pleading guilty and in absence of that Court cannot convict him on the basis of such plea. He has further relied upon 1993 P Cr. L J 2306 in which it has been held that no Court can take cognizance of any offence punishable under section 188, P.P.C., excepting on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. According to his contention all the proceedings against the applicant were illegal and as such no conviction can be maintained, as a person who was not competent to file such complaint bases the case on the basis of a report. He has further relied upon on 1971 P Cr. L J 658,1988 P Cr. L J

988. Learned counsel for the State concedes to the legal points raised by the learned counsel for the applicant. According to him it is a fit case an which proceedings should be quashed. I have considered all the facts and also, legal points involved in this case. I have also perused the F.I.R. and order of the A.C.M. and also the judgment of the learned Sessions Judge, Sukkur, who has mainly dismissed the appeal on the ground that no appeal can lie against the order, which is based on the plea of guilt. Considering all the facts and contentions raised by the Advocate for applicant, I feel that the order passed by the learned A.C.M., Sukkur and even cognizance taken by him is not in accordance with law and even the learned Sessions Judge has not possibly given attention to the legal points now raised le by the learned counsel for the applicant before this Court. For the abovesaid reasons I, accordingly quash the proceedings, and set aside the conviction and sentence passed on the applicant. The fine, if recovered, may also be returned to him. N.H.Q./B-258/K Proceedings quashed.