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Criminal Miscellaneous Application No. 122 of 1978, decided on 28th August, 1978.

-----S. 561-A read with S. 195-Quashment of proceedings-Pro ceedings under S. 188, P. P. C. initiated by Police Officer himself, although S. 195, Cr. P. C. requiring Court to take cognizance of offence only on complaint, in writing, of public servant con cerned-Cognizance by Court, held, taken in contravention of S. 195, Cr. P. C. and invalid-Proceedings quashed, in circumstances Penal Code (XLV of 1860),. S. 188.-[Cognizance].

Sharif and another v. State P L D 1975 Lah. 1315 fol.

Qamar Muhammad Khan for Petitioner.

Agha Ghulam All for the State.

Date of hearing : 28th August, 1978.

This petition under section 561-A is directed against proceeding started by S. H. O. Preedy Police Station under section 188, P. P. C. District Magistrate Karachi had promulgated an order under sec tion 144, Cr. P. C. prohibiting assembling of persons in the vicinity of Empress Market Karachi. The petitioner, it is alleged, assembled big men on Mansfield Street Saddar in violation of the said orders. An F. I. R. was accordingly registered by S. H. O. Preedy. On the basis of the F. I. R. he submitted a charge sheet against the petitioner in the Court of S. D. M., Civil Lines, Karachi.

2. It has been argued by Mr. Qamar Muhammad Khan on behalf of the petitioner that the proceedings against the petitioner are without lawful authority as they have been instituted in violation of section 195, Cr. P. C. Under section 195, Cr. P. C. no Court shall take cognizance of any offence punishable under section 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. Therefore, where the offence complained of in is violation of the order of the D. M. passed under section 144, Cr. P. C. under section 195 it will be necessary before starting any proceedings against the person concerned that the complaint should be filed by the D. M. or by some officer to whom he P1was subordinate. It is true that an amendment has been made in the schedule of the Cr. P. C. and section 188, Cr. P. C. hive been made cog nizable. Under Notification No. Judicial 1-3(1)/69 in exercise of powers conferred by subsection (1) of section 10 of the Criminal Law Amendment Act, 1932, the Governor of West Pakistan was pleased to declare that any offence punishable under section 188 of the P. P. C. committed in any place to West Pakistan shall by cognizable. This Notification was published on 14th March, 1969, by another Notification the offence. was made non -bailable. However, a cognizable offence has been defined under section 4 (f) an offence in which a police officer may arrest without warrant. The other amendment making the offence non-bailable would show that the intention of the Legislature was to authorise the police to arrest a person violating section 144, on the spot. No corresponding amendment was however made under section 195, Cr. P. C. requiring a complaint in writing by the public servant concerned. A complainant is not the same thing as a charge-sheet. Under section 4(1) (h) complaint is defined as an allegation orally or in writing made to a Magistrate with a view to his taking action under the Code but it does not include the report of the police officer. A Police Officer cannot therefore submit a charge-sheet in a case under section 188, Cr. P. C. as under section 195, Cr. P. C. a Court could take cognizance of this offence only on the complaint in writing of the public servant concerned. Thus cogni zance by the Court on a charge sheet submitted by the police in Contra vention of section 195, Cr. P. C. would be invalid. In the absence of complaint required by section 195 the Magistrate taking cognizance acts without jurisdiction. A decision of Lahore High reported in Sharif and another State (P L D 1975 Lah. 1315) has been cited by the learned counsel on behalf of the petitioner. In that case too it was observed by Aslam Riaz Hussain, J., that the Magistrate cannot take cognizance of a case under section 188, Cr. P. C. unless and until the D. M. files a complaint before the compe tent Court. In the absence of such a complaint the proceedings started in the case would be illegal. Under these circumstances the petition is accepted and the proceedings are hereby quashed.

Petition accepted.

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