1998 P Cr (PLP)

Zawar Hussain Jafferi, Addl. A.‑G., Sindh for the State. This application has been moved by Mr. Mumtaz Ali Siddiqui, Advocate for the applicant Atta Muhammad for the quashment of the proceedings pending against the applicant in the Court of Judicial Magistrate No.II, Naushero Feroze for offences under section 182/211, P.P.C. in which the abovesaid Magistrate has issued B.Ws. against the applicant. The brief facts of the case are that on 21‑6‑1996 applicant Atta Muhammad lodged report at Police Station Padidan as Crime No.24 of 1996 offences under sections 506/2, 147 and 148, P.P.C. Learned counsel appearing for the applicant submits that the abovesaid F.I.R. was disposed of by the police as false, but no summary was put up before any Magistrate for approval and straightaway on 9‑3‑1997 S.H.O. Padidan Police Station submitted report before the S.D.M. Naushahro Feroze for action against the applicant for offences under section 182/211, P.P.C. The learned S.D.M. did not accept the report and returned the same to the S.H.O. Padidan Police Station on the ground that no summary orders have been obtained from any Magistrate as required under section 173, Cr.P.C. Learned counsel further contends that even after the return of the said report, the said S.H.O. submitted fresh report in the Court of Judicial Magistrate II, Nasuhehro Feroze for taking action against the applicant under section 182/211, P.P.C. and the learned Magistrate issued B.Ws. against the applicant, which has given cause of action to the applicant who has prayed for the quashment of the proceedings. Learned counsel appearing for the applicant has argued that no report by the S.H.O. Padidan, could be submitted in the Court of Judicial Magistrate particularly when the S.D.M., Naushahro Feroze has returned such proceedings with direction to obtain the orders from some Magistrate but in spite of that he has mala fidely submitted the report before the Judicial Magistrate without approval of summary or disclosing the abovesaid facts. Mr. Zawar Hussain Jafferi, learned Additional Advocate‑General, Sindh who is present and was already put on notice that the matter involves a very short point and, therefore, can be disposed of on the same day and with their consent, the matter is being heard for final disposal, of this criminal miscellaneous application. Learned counsel appearing for the applicant has repeated the same facts as stated above and he has further placed the reliance on the case of Mahmood Ali v. The State reported in. 1994 PCr.LJ 842 and another case, which he has relied is State v. Muhammad Ayub Khan reported in 1994 PCr.LJ

698. The learned Additional Advocate‑General, Sindh appearing for the State has frankly conceded and has submitted that the order passed by the Magistrate taking the cognizance in such manner is not sustainable and he therefore, does not support the order of the Judicial Magistrate. He further submits that the cognizance for offence under section 182/211, P.P.C. cannot be taken until and unless the summary is prepared by the police under the Police Rules and is submitted to the Magistrate for the approval under section 173, Cr.P.C. and after such approval, the police can submit the report before the concerned Magistrate for initiating the proceedings against the persons who has placed false information before the police. I am also of the view that S.H.O. Padidan could not submit the report without approval of the Magistrate under section 173, Cr.P.C. and furthermore it is very surprising that at the first instance he submitted the report before the S.D.M., who returned the same on 11‑3‑1997 then the report before the Judicial Magistrate Naushahro Feroze without the approval or disclosing the above facts was submitted. Under the above circumstances, I am fully convinced with the arguments of the learned counsel and also fair opinion of the Additional Advocate‑General, I am of the considered view that no proceedings can be initiated in the manner as taken in the present case. Accordingly, this Criminal Miscellaneous Application No.335 of 1997 is allowed and the proceedings pending against the applicant before the Judicial Magistrate, Naushahro Feroze are hereby quashed. N.H.Q./A‑196/K Proceedings quashed,