2001 P Cr (PLP)

Muhammad Haroon's case 1991 MLD 397 and Jameel Ahmad Khan's case 1990 PCr.LJ 1475.

4. The learned counsel of respondent No.2 submits that judgments cited by the learned counsel of the petitioners are distinguishable on facts and law. He further submits that the ordinary police is only prohibited to investigate. the matter by virtue of section 195, Cr.P.C. This section does not debar the ordinary police to register a case against the petitioner. In support of his contention he relied upon the following judgment:- 1991 PCr.LJ 230.

It is pertinent to mention here that there is no judgment at this page. He further submits that original documents were not produced by the petitioners, therefore, orders of the Superintendent and Wafaqi Mohtasib have no nexus to decide the present controversy between the parties. In support of his contention he relied upon PLD 1949 PC

207. It is pertinent to mention here that there is no judgment at this page. He further submits that petitioner No.1 was acquitted by the Special Judge under section 265-K, Cr.P.C., therefore; the petitioner cannot get the benefit of the same as the same was not decided on merits. In fact the petitioner was acquitted on technical grounds. He further submits that the order passed by Superintendent is not a case decided in the criminal side. The respondent No.2 is well within his right to get a case registered against the petitioner on the well-known principle that the departmental and criminal proceedings shall be continued side by side. In support of his contention he relied on Adam's case PLD 1969 SC 446.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological to resolve the controversy between the parties:- (1) Petitioner No.1 was arrested by respondent No.2 on 15-9-1988. (2) Superintendent decided the case in favour of the petitioner vide order, dated 29-6;1989 and directed the office to initiate proceedings against respondent No.2. (3) Petitioner was acquitted in case F.I.R. No.65, dated 15-9-1988 by the Special Judge Customs on 19-7-1989. (4) Petitioner filed a complaint against respondent No2 before the Wafaqi Mohtasib. (5) Director of Wafaqi Mohtasib informed the petitioners on 18-4-1990 that respondent No.2 was awarded punishment of stoppage of two years increments permanently due to his misconduct qua the incident in question. (6) Respondent No.2 got a case registered against the petitioners qua the same incident on 29-6-1990 vide F.I.R. No.441 at Police Station Civil Line, Gujrat. In case the aforesaid facts are put in juxtaposition then it is crystal clear that respondent No.2 had got a case registered against the petitioners malafidely. The two competent forums i.e. Superintendent and Wafaqi Mohtasib awarded punishment to respondent No.2 on account of his misconduct qua the arrest of the petitioner, therefore, he got a case registered against him. A Mala fide respondent No.2 is not authorised to lodge an F.I.R. against the petitioners on the basis of Notification No. SRO 913(1)86, dated 5th October, 1986. It is preconditioned that the case qua the custom matters must be registered on the complaint filed by the competent person on the aforesaid notification which clearly reveals that the respondent No.2 was prohibited to do the same. It is better and appropriate to reproduce the aforesaid notification:- "Notification NO.S.R.0.913(1)/86, dated 5th October, 1986. In exercise of the powers conferred by section 6 of the Customs Act, '1969 (IV of 1969), and in supersession of its Notification NO. S.R.0.1029(1)/74, dated the 29th July, 1974, the Central Board of Revenue is pleased to entrust to the officers of police excluding Pakistan Railways Police constituted under the Pakistan Railways Police Act, 1977 (VII of 1977) specified in the first." In the absence of permission from the competent Authority the proceedings suffer from coram non judice as initiated against the mandatory provisions of 8 law, therefore, based on mala fide and without lawful authority as held in by the Honourable Supreme Court in Mansab Ali's case PLD 1971 SC

124. The impugned F.I.R. is liable to be quashed as per principle laid down by the superior Courts in the following judgments:-- Muhammad Haroon's case 1991 MLD 397, Jameel Ahmad Khan's case 1990 PCr.LJ 1475 and Agha Nadeem's case 1998 PCr.LJ

181. The judgments cited by the learned counsel of the respondents are distinguished on facts and law and have no relevancy to resolve the present controversy. In view of what has been discussed above this writ petition is C accepted. Consequently, the impugned F.I.R. is quashed with no order as to costs. N.H.Q/Z-35/L F.I.R. quashed.