1998 P Cr (PLP)

1996 PCr.LJ 483 rel. Sardar Muhammad Ishaque for Applicant. Agha Zafir for the Slate. Date of hearing: 29th October, 1996. The relevant facts for the decision of this Criminal Miscellaneous Application are that A.S.‑I. Adil Naqvi of Police Station Jauharabad, Karachi Central on behalf of the State lodged a report on 23‑4‑1993 stating therein that he atongwith P.C. Muhammad Asghar, Constable Rao Akhtar and Constable Nooruddin were on duty when three to four hundred persons had assembled near the house of M.Q.M. Chief Altaf Hussain in order to hear his speech on telephone. It was about 10/11 p.m. The A.S.‑I. stated in his report that since the District Magistrate, Karachi‑Central had enforced order under section 144, Cr.P.C. prohibiting assembly of more than four persons and since so many persons had assembled together, they had violated the provisions of section 144, Cr.P.C. and had thereby committed an offence under section 188, P.P.C. The present applicant Muhammad Inamul Haque was implicated in the said case punishable under section 188, P.P.C. and was facing trial in the Court of Sub Divisional Magistrate, Liaquatabad, Karachi‑Central in the case registered against him under F.I.R. No.202 of 1993.

2. The present application under section 561‑A, Cr.P.C. is filed directly before this Court for quashment of the proceedings against the applicant on the ground that the F.I.R. registered by the A.S.‑I. Police in this case could not put the law in motion as the District Magistrate, Karachi‑Central, who had promulgated the order under section 144, Cr.P.C. had to file the complaint himself directly in the Court and that, therefore, this case could not result into conviction hence the proceedings before the trial Court amounted to an abuse of the process of Court and that therefore, the same were liable to be quashed. Learned counsel for the applicant has argued in detail and has relied on the authority of this Court reported in 1993 PCr.LJ 2306, in which it has been held that cognizance of police report in such case could not be taken by the Court unless a complaint was filed by the public servant concerned, who had promulgated the order under the provisions of section 144, Cr.P.C.

3. Learned counsel for the State has, however, contended that section 188, P.P.C. has been made cognizable by making an amendment in the schedule of Criminal Procedure Code and thereby a Police Officer has been empowered to arrest a person without warrant if an offence has been committed in a public place.

4. I have considered the arguments of the learned counsel. In the case reported in 1996 PCr.LJ 483 it has been held that although the offence has been made cognizable 'by affecting the amendment in the schedule of the Criminal Procedure Code in respect of section 188, P.P.C. but the corresponding amendment in section 195, Cr.P.C. is still wanting, therefore, the cognizance of the offence still could not be taken on the F.I.R., when no complaint has been filed by the competent authority.

5. In view of the above position on this technical ground, the taking of the cognizance by the Magistrate may not be legal and, therefore, the further proceedings before the Magistrate may amount to the abuse of the process of the Court. Under the circumstances, this Criminal Miscellaneous Application is accepted and the proceedings against the applicant are hereby quashed. N.H.Q./M‑198/K Proceedings quashed.