P L D 1953 Peshawar 21 (PLP)

Muhammad Zaman Khan for Petitioner. Muhammad Ali Khan Advocate‑General for Government, MUHAMMAD SHAFI, J.‑Wazir Muhammad Khan, aged about 32 years, son of Noor Illahi Khan, of Akora, Khattak, has been convicted under section 186, P. P. C. and sentenced to pay a fine of Rs. 25, or in default to undergo one month's simple imprisonment. He petitioned against this order to the Court of the Sessions Judge, Peshawar. The learned Additional Sessions Judge (Mian Shakirullah Jan), who heard this petition, has forwarded the case on to this Court with the recommendation that the petition be accepted and the conviction and sentence of the petitioner be quashed. He has given several reasons in support of his recommendation, but I propose to deal only with one of them, because it taken alone, in my opinion, vitiates the whole trial. The allegation against the accused was that sometime before the day of occurrence, which fell on the 29th of May, 1951, Noor Illahi Khan, father of the accused, was asked in writing by Muhammad Ghaus patwari (P. W. 1) to join the party which was meant to destroy the locusts and hoppers. Noor Illahi Khan wrote back that he could not help them on account of his illness, but his son Wazir Muhammad Khan accused would be present to render the necessary assistance. On the day when the locusts and the hoppers were to be destroyed the patwari went to the village, but he found that neither the accused nor other villagers had come to assist the authorities in destroying the locusts. On 29th May 191, Muhammad Ghaus patwari again went to Akora, in company with Muhammad Idris A. S. I. (P. W, 2). The former complained to the latter that the accused and his tenants had not turned up on the previous day in order to destroy the locusts. Thereupon the accused is alleged to have told the patwari that lie was not bound to help the Government in the destruction of the hoppers. He abused the patwari in a very filthy language. But for the intervention of Muhammad Idris A. S. I., it is stated that the accused would certainly have harmed the patwari. Muhammad Idris A. S. I. made a complaint to the Magistrate under section 186, P. P. C., and cognizance was taken thereupon by the Magistrate concerned, who recorded the conviction as already observed. The legal objection to these proceedings is that under section 195, Cr. P. C. the Magistrate could not take cognizance of the offence under section 186, P. P. C., except on the complaint in writing of Muhammad Ghaus patwari, or some public servant to whom Muhammad Ghaus was subordinate. Muhammad Idris A. S. I. had no authority to put in such a complaint, nor did the learned trial Magistrate had jurisdiction to proceed with the trial on such complaint. It is admitted that the patwari made no complaint in this case either to the Magistrate or to Muhammad Idris A. S. I. The learned Advocate‑General has, however, argued that the Patwari made a complaint orally to Muhammad Idris A. S. I. and it was as a consequence of that report that the latter put in a written complaint to the Magistrate, upon which the latter took cognizance of the case. He contended that this satisfied the law, and even if there WO some error, omission or irregularity in tile complaint, the finding or sentence could not be reversed on account of that reason, because such an error, omission, or irregularly was cured by section 537, Cr. P. C. In support of his argument he produced the judgment of a single Judge of the Allahabad High Court In Barkal and another v. Emperor reported as A. I. R. 1913, All page

6. In this case the learned Judge observed that "The term 'complaint' as defined in action 4 (1) (h), Cr. P. C. has the meaning therein given unless a different intention appears from the subject or context. The term "comp laint" as defined in section 4 (() (h) does not include the report of a police officer. But the term "complaint" in section 195 is not used in the technical sense in which it is defined in section 4 (1) (h). The intention of section 195 is only that the Magistrate should not punish any person except at the instance of the public officer concerned, or of his suparior. Consequently where a Civil Court Amin who is obstructed in the execution of his duty makes a complaint to the police and the Magistrate acting on the police report had before him at the time of convicing the accused under section 186, Penal Code, the report of the Amin made to the police and the evidence of the Amin who had been called as a witness, section 195 must be taken to have been complied with. At the most the complaint by the Amin is irregular within section 537 and the conviction cannot be set aside unless substan tial injustice has been done." I am afraid, with due deference to the learned Judge I do not find myself in agreement with the view expressed by his Lordship in the above authority. Under section 19:, Cr. P. C. no Courts can take cognizance of any offence punishable under sections 172 to 188, P. P. C. except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. The word "complaint" is defined in section 4 (1) (h) as under :‑‑ "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." I cannot possibly find any authority for the view that the word "complaint" used in section 195 should have a different meaning from the one given in section 4 (1) (h). I am also not prepared to agree with Mr. Justice Allsop in the above authority that a complaint to the police officer is enough: to confer jurisdiction on a Magistrate to try a case under section 186, P. P. C. In the definition of the complaint as given above, the complaint has got to be made to a Magistrate, it shall not satisfy the provisions of law, if a complaint is made to the police officer, who in turn makes a report, or submits a complaint to the Court of the Magistrate to concerned. Lastly I also beg, to differ from his Lordship that the failure to file a complaint in the Court of a Magistrate is an omission, irregularity or error, which can be cured by section 537, Cr. P. C. It would be seen from the wording of section 195, Cr. P.C. that a Magistrate cannot take cognizance of a case under the sec tion as mentioned therein until and unless there is a complaint before him made by certain specified persons. If no complaint is made to the Magistrate, there is no jurisdiction conferred on the Magistrate to take cognizance of the offence under that particular section, It is, therefore, not a case of mere error, omission or irregularity in the complaint, but it i3 a case of a complete absence of jurisdiction of the Magistrate concerned to take cognizance of the offence under those particular sections. I am, therefore, of the opinion that section 537, Cr. P. C. is not meant to cover a case of complete absence of jurisdiction. I am consequently of the view that the learned Magistrate in this case had no jurisdiction to try the accused‑petitioner. Without, therefore, going into the merits of the case, I accept this revisions petition on the legal ground, and hold that the entire trial was bad in law. The proceedings are hereby quashed. The fine, if paid, shall be, refunded to the accused petitioner. Orders announced. A. H. Petition accepted.