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Criminal Miscellaneous No. 1589 of 1968, decided on 1st October 1968.
S. 561‑--A‑--Quashment of proceedings‑Complaint not disclosing any offence‑High Court can, under inherent jurisdiction, quash proceedings.
Ghulam Muhammad v. Muzammal Khan P L D 1967 S C 317 and Pasupati Banerji v. The King A I R 1950 Cal. 97 ref.
Ijaz Hussain Batalvi for Petitioner.
Malik Abdul Hamid for the State.
Muhammad Younas petitioner on 7th January 1968, at 6‑15 p.m., lodged first information report at Police Station Pakpattan, District Sahiwal, to the following effect:
"The police of Arifwala Police Station had arrested my brother Muhammad Ishaq son of Muhammad Shafi, caste Rajput, under sections 107/151, Cr. P. C., on the 5th January 1968. He is in judicial lock‑up now. His bail has been accepted today by the Resident Magistrate, Pakpattan. Today at about 3‑30 p.m. I visited the judicial lock‑up along with Ch. Muhammad Aslam son of Nemat Ullah, caste Arain, resident of Arifwala, Arshad Majid, son of Muhammad Shafi, caste Rajput, resident of Arifwala; Munawar son of Ch. Allah Rakha, caste Khokhar, resident of Arifwala, Sheikh Feroz Din, caste Sheikh, resident of Arifwala, Lambardar of Chak No. 61/EB., Imtiaz Hussain, son of Iqrar Hussain, caste Syed, resident of Arifwala and Ghulam Muhammad son of Khewan, caste Malik, resident of Arifwala. 1 produced the release order passed by the Resident Magistrate, Pakpattan Sharif, before the Head Constable Guard‑in‑charge. He told me that the "Trunkey" was not available. He further told that he could not take the accused out of the judicial lock‑up. We continued waiting for the "Trunkey" but he has not turned up till now. A report may be entered on our behalf. I have come to the Police Station after getting fed up."
The Sub‑Inspector of PakpattanPolice Station made the following endorsement:--
"The report has been entered into the Roznamcha according to the statement of Muhammad Younas, complainant. The report was read over to Muhammad Younas, who after admitting the same to be correct has put his signatures in my presence. From the above‑mentioned facts the offence does not appear to be a cognizable one. As the complainant has a pressing desire for the report being entered it has been entered accordingly. A copy of the report has been delivered to Muhammad Younas."
On the 24th of January 1968, the S. H. O. Police Station Pakpattan through Noor Ahmad, Additional Darban, filed a complaint against the petitioner under section 182, P. P. C. in the Court of the Naib‑Tahsildar Second Class Magistrate, Arifwala to the following effect:‑‑
"On the 7th of January 1968, Muhammad Younas accused arrived at the Police Station and reported that his brother Muhammad Ishaq was confined in Judicial Lock‑up Pakpattan under section 107/151, Cr. P. C., who was bailed out on that day by the Resident Magistrate, Pakpattan. He reached the Judicial Lock‑up at 3‑30 p.m. and handed over the order of the Resident Magistrate, Pakpattan, regarding the release of Muhammad Ishaq. I asked him that as the Trunkey was not present there, I could not release the accused from the Judicial Lock‑up. They remained waiting for the Trunkey who did not arrive. Having been fed up, I went to the Police Station. Consequently, Noor Ahmad Darban reached Police Station at 6‑25 p.m. and got recorded his statement at 6‑10 p.m. Muhammad Younas who posed himself to be an Advocate, produced a bail order for the release of Muhammad Ishaq, accused in a case under section 107/151, Cr. P. C. Neither the order bore any seal nor it had been brought by any Govern ment official on account of which the correctness of the order could be apprehended. Besides this, the order was brought after sunset. After sunset the Judicial Lock‑up cannot be opened without the order of the Sub‑Divisional Magistrate. Upon this, Muhammad Younas threatened him that he would cause him damage. On account of it, he got registered the report against his absence, notwithstanding Muhammad Younas reached the Police Station at 6‑30 p.m. Moreover, he (barban) also reached the Police Station after him. Consequently, the Deputy Superintendent of Police sought the opinion of the Prosecution Inspector on this report. The aforesaid Prosecution Inspector told that the offence was one under section 182 of the Pakistan Penal Code and non‑cognizable. On this the D. S. P. directed to act upon the advice of the Prosecuting Inspector. Therefore; keeping in view the personalities of the witnesses mentioned in the complaint, the Kalandra is submitted after preparing the same."
The learned Magistrate on receiving the complaint summoned the petitioner. The petitioner has now moved this Court for quashment of proceedings under section 561‑A, Cr. P. C. on the ground that no offence under section 182, P. P. C. has been made out and that the proceedings against the petitioner are mala fide have been initiated due to previous enmity.
2. The general principles as to when the High Court should exercise its inherent jurisdiction under section 561‑A, Cr. P. C. are laid down by the Supreme Court in case Ghulam Muhammad v. Muzammal Khan (P L D 1967 S C 317) as follows:‑
"The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress h grievances for which no other procedure is available or has been provided by the Code itself. The power given by This section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
Now the point for determination is as to whether the complaint, if believed, discloses any offence or not. The Sub‑Inspector who recorded the first information report lodged by the petitioner did not take any action as the offence disclosed was not cogniz able. In other words the Sub‑Inspector was being asked to do something which did not constitute an act to be done in the exercise of his duty as a public servant. In case Pasupati Banerji v. The King (A I R 1950 Cal. 97) it was observed:‑
"In order to establish an offence punishable under section 182, Penal Code, it must be established that a person gave informa tion which he knew or believed to be false to a public servant and that he intended thereby to cause such public servant to do something which he ought not to do. The words 'to do some thing' which such public servant ought to do must mean to do something which the public servant was enjoined to do in his official capacity as public servant. If a person gives false information to a public servant knowing it to be likely or intending that he would do something which had no connec tion with his office as a public servant the conduct of the person giving such information would not come within the purview of section 182, Penal Code."
Thus it is established that the complaint if believed did not disclose any offence and, therefore, the High Court can exercise it inherent jurisdiction under section 561‑A, Cr. P. C. for quashing the proceedings. I, accordingly, acting under section 561‑A, Cr. P. C. accept the petition and quash the proceedings pending against the petitioner.
Petition accepted.
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