P L D 1983 Lahore 372 (PLP)

This writ petition is directed against the order dated 27-10-1981. of the Additional Commissioner (Revenue), Lahore Division, Lahore, whereby after having come to the conclusion that the order dated 29-7-1980 of his predecessor directing maintenance of status quo as regards the possession of the petitioner on the disputed land had been intentionally violated by the six respondents in that case namely Noor Muharnmad, Muhammad Nawaz, Jalal alias Jallu, Ijaz Ahmad, Ghularn Qadir and Hanif by taking forcible possession of the land, he only directed the S. H. O. Ferozewala to register a case against the said persons on the statement of petitioner and did not himself frame a complaint and forward the same to the Magistrate for trial of the said 6 persons.

2. The facts of the case are that an appeal was pending in the Court of the Additional Commissioner (Revenue) against an order passed in mutation of inheritance, mutating certain land in favour of said six persons. An order of maintenance as regard the possession of the petitioner Muhammad Ramzan over the land in question was passed by the predecessor of the Addl. Commissioner on 29-7-1980. The said six persons took forcible possession of the land and thus violated the said order of maintenance of status quo.

3. On 2-11-1980 petitioner Muhammad 'Ramzan filed an application against all the said six persons before the Additional Commissioner (Revenue) for action being taken against them for violation of said order of maintenance of status quo. The Additional Commissioner (Revenue) sent the case for inquiry to the A. C., Ferozewala. The A. C. deputed E. A. C., Ferozewala to conduct inquiry in the matter. The E. A. C. reported on 16-4-1981 that there had been violation of order of 29-7-1981 of the Additional Commissioner (Revenue). The A. C. endorsed on 4-5-.1981 and concluded that the said six persons had, in clear violation of status quo order, taken forcible possession of said land. This report was sent to the Additional Commissioner (Revenue) alongwith the entire inquiry file and it was on this report that the Additional Commissioner (Revenue) made the above order dated 27-10-1981. He held that by committing intentional breach of status quo order passed by his predecessor the said six persons had caused obstruction m the due process of law. It seems, therefore, that he was of the view that the said six persons had, prima facie, committed offence under section 186, P. P. C. In any way as shown above be directed the S. H. O., Ferozewala to register a case against said six persons on the statement of petitioner.

4. The point raised by the learned counsel for the petitioner in this writ petition is that under section 195 (1)(a), Cr. P. C. no court can take cognizance of any offence under sections 172 to 188, Cr. P. C. except on a complaint in writing of the public servant concerned and, therefore, the mere direction to the S. H. O. to register a case against said six persons would be ineffectual and would not meet the ends of justice and even if a challan is submitted the criminal Court would be powerless to take any action against said respondents as it would be barred under the provisions of section 195, Cr. P. C. from taking cognizance of such a case in the absence of a complaint from a public officer whose order had been violated. Learned Additional Advocate-General has, however, submitted that violation of the order of maintenance of status quo passed by the Additional Commissioner (Revenue) falls under section 188 of the P. P. C. He further submits that the sections 165 and 188, P. P. C. by virtue of notification No. Judl-1-3 (1)/69 published in Government Gazette, dated 14th of March, 1969 had been declared to be cognizable while offence under section 188 had been declared to be nonbailable also and that, therefore, the direction of the Additional Commissioner (Revenue) to the S. H. O., Ferozewala to register a case against the respondents was sufficient.

5. For proper appreciation of the above arguments, section 195 (1) (a) of Cr. P. C. and section 186 and, 188, P. P. C. are given below in extenso. Section 195 (1) (a), Cr. P. C.--No court shall take cognizance 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 ; Section 186, P. P. C.-Whoever, voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with, imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or or with both. Section 188, P. P. C.-Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both ; and if such disobedience causes or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.-It is not necessary that the .offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.

6. I have given my anxious thought to the points raised by the counsel for the parties. I have also perused case-law on section 186, P. P. C. and find that under section 186, P. P. C. an obstruction has been held to be aril obstruction of physical nature. In case of Mt. Darkhan v. Emperor (A I R 1928 Lab. 827) it was held that word `obstruction' under section 186, P. P. C. means physical obstruction i. e. actual resistance or obstacle put on the way of a public servant and the word implies the use of criminal force. In my opinion, therefore, the section 186, P. P. C. is not applicable to the facts of . the case. Now I have to see if the facts constituting the offence fall under section 188, P. P. C. The question of application of section 188 would turn upon the interpretation of the word `Promulgated'. It has, however, been laid to case of Ijaz Ahmad v Maheshwar (A I R 1953 All. 257) that word `promulgation' is not used in an narrow or technical sense. in section 188, P. P. C. and when a judgment or order is passed in an open court, it constitutes a formal declaration to the public o the decision of the court in the case in which the order is given or judgment is passed. In that case an order was passed under section 145 (6), Cr. P. C. and its announcement in the court in the presence of parties was held to constitute promulgation within the meaning of section 188, P. P. C. Again it was held in case of State v. S. M. Tugla (A I R 1955 All 423) that the promulgation connote: two ideas ; (i) making known of an order, and (ii) the means by which the order is made known must be by something done openly and in public. I was further held in that case that the law does not prescribe any particular mode in which an order is made known openly and publicly and that an order duly pronounced in open court must be deemed to be duly promulgated so far as parties to the case are concerned. In view of these decisions my view is that the violation of the order of the Additional Commissioner (Revenue) in regard to the maintenance of status quo passed by him fell within the mischief of section 188, P. P. C.

7. Now the offence under section 188, P. P. C. is included in the offences mentioned under section 195 (1) (a) of Cr. P. C. excluding the taking of cognizance by criminal Court, of the commission of said offence except on a complaint in writing from the officer whose order had been violated. Tier is no doubt that the offence under section 188 has been declared to be cognizable and on that account the S. H. O. Police can, not only record F. I. R. but can also proceed to arrest the offender and investigate the case and can submit even a charge-sheet but no corresponding amendment has been mad in section 195, therefore, the legal position remains intact that the criminal court is not competent to take cognizance of offence under section 188, P. P. C. unless a complaint has been made by an officer whose order has been violated. II is well-settled that the police report or the charge-sheet is not a complaint as defined under section 4 (h) of the Cr. P. C. The said definition of complaint is as below : "Section 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." It would be seen that report of the police officer under section 173, Cr. P. C. or charge-sheet as it is generally called is expressly excluded from the definition of a complaint. In the circumstances it is clear that mere order of the Additional Commissioner (Revenue) directing the S. H. O. to register case against the respondents is going to be of no avail as the criminal Court is barred by express provision of section 195 (1) (a) from taking cognizance on a police report submitted on the basis of the F.

1. R. and such court can take cognizance of the case in respect of the said offence only on a complaint made by the officer whose order had been violated.

8. This brings to the question as to whether a writ in the nature of mandamus can issue and whether Additional Commissioner (Revenue) can be compelled to frame a complaint and sent the same to the court concerned. In my view, in the circumstances of the instant case such an order can be passed. The Additional Commissioner (Revenue) had already taken the decision that case before him was fit case in which action should be taken against offender who had violated the order of maintenance of status quo. He, however, does not appear to be cognizant that the police report is going to be of no consequence in the matter and the offenders cannot even be summoned to stand their trial by the criminal Court to which charge-sheet or police report is submitted. Direction to the Additional Commissioner (Revenue) to frame a complaint under section 188, P. P. C. and refer it to the Ilaqa Magistrate would, therefore, amount to effectuating the very intention of Additional Commissioner (Revenue) and bringing his action which he has already taken by his own violation to the logical end.

9. That, however, does not mean that the previous order of Additional Commissioner (Revenue) is liable to be quashed. Since the offence under section 188, P. P. C. has been declared to he cognizable and non-bailable, the` previous direction of the Additional Commissioner (Revenue) to the S. H. O. I, Ferozewala to register a case against the -aid violators of the status quo order cannot be considered to be illegal. I have only held that said order is note sufficient and falls short of the necessary action required to bring the said culprits to book. Though challan would by itself be of no consequence, ill would give support to complaint filed by the Additional Commissioner (Revenue).

10. In view of the above, I accept this writ petition and direct the Additional Commissioner (Revenue) to frame a complaint against the said six persons for the offence under section 188, P. P. C. in respect of violation of order of maintenance of status quo granted by his predecessor on 29-7-1980 and submit the same before the ilaqa Magistrate.. There will, however, be no order as to costs. M. Y. M. Petition allowed.