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Criminal Reference No. 66 of 1973, decided on 31st July 1973.

S. 195-Provisions of S. 195 do not permit any delegation of authority by public servant concerned-Penal Code (XLV of 1860), S. 182.

S. 195-Court dis missing complaint for non-compliance with provisions of S. 195 Dismissal does not operate as an acquittal so as to bar fresh and proper complaint in accordance with law.

Rana Muhammad Afzal Khan v. The State P L D 1962 S C 397 ref.

Muhammad Shafiq Khan for Petitioner.

Muhammad Shah Badshah for A.-G. for the State.

Date of hearing 31^st July 1973.

On 2-7-1971, Abdul Hanan of Choghul Pura lodged its report at Police Station Saddar, Peshawar and charged Maskeen for an attempt to murder the complainant's mother by firing at her with a shotgun. This report was scribed by Azizur-Rehman S. H. O. of the Police Station. The case was partly investigated by Muhammad Tahir Khan, A. S. I. Police Station Saddar. Am a result of the investigation, the I. O. (Muhammad Tahir came to the conclusion that the shot was, in fact, fired by Abdul Jali6 and had accidentally hit the mother of the complainant. The case against Abdul Jalil was, therefore, challaned to Court.

2. The police lodged a complaint under section 182, P. P. C. against Abdul Hanan, who bad lodged the F. I. R. to S. I. Azizur-Rehman. In the complaint, Mebboob, Maskeen, Abdub Shakoor and Muhammad Tahir A. S. I. were cited as witnesses out of whom Abdul Shakoor was examined, but he denied all knowledge of the occurrence. Mehboob was abandoned and only Maskeen and A. S. I. Muhammad Tapir were examined. As a result of the trial of Abdul Hanan under section 182, P, P. C. Mr. Abdur Rashid Khan, M. I. C., Peshawar convicted Abdul Hanan under section 182, P. P. C., and sentenced him to pay car fine of Rs. 30 only or in default to suffer one month's R. I. by his order dated 22-6-72.

3. Abdul Hanan went in revision before the Sessions Judge, Peshawar. The learned Sessions Judge after hearing the revision petition referred the case to this Court for quashment of the proceedings on the ground that A. S. I. Muhammad Tahir, was not authorised to lodge the complaint.

Arguments of Mr. Muhammad Shafique Khan, Advocate for Abdul Hanan and Mr. Muhammad Shah Badshah, Advocate for the State heard. Record perused.

Section 182, P. P. C., lays that whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant---

(a) to do or omit anything which such public servant ought not to do or omit if the true state of acts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to injury or annoyance of any person,

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"

Section 195, Cr. P. C. reads

"(1) No Court shall take cognizance-

(a) 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 of other public servant to whom he is subordinate.

(b) . . . . . . . . . . . .

As discussed above, the complaint under section 182, P. P. C. against Abdul Hanan was drafted and lodged by Muhammad Tapir A. S. I., Aziz-ur-Rehman S. H. O., who scribed the First Information Report of Abdul Hanan, has not even been cited as a witness. Section 195, Cr. P. C. does not permit any delegation of authority by the public servant concerned. In this view of the case, under section 195, Cr. P. C., the Court of Magistrate, Peshawar could not take cognizance of the complaint and the proceedings of the complaint in this Court, therefore, are liable to be quashed. 1, therefore, set aside the conviction and sentence of Abdul Hanan under section 182, P. P. C. and dismiss the complaint.

It is a settled law that where the Court dismisses a complaint for non-compliance of section 195, Cr. P. C., the dismissal does not operate as an acquittal by a Court of competent jurisdiction so as to oar a fresh and proper complaint in accordance with the section. Reliance is placed on Raga Muhammad Afzal Khan o. The State (P L D 1962 S C 397). The prosecution, if advised, may lodge fresh and proper complaint under section 182, P. P. C., against Abdul Hanan.

K. B. A. Proceedings quashed.

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