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Criminal Miscellaneous Application No. 1244 of 1985, decided on 14th April, 1986.
---S. 195--Penal Code (XLV of 1860), S.182--Cognizance--S.H.O. registering First Information Report filed by accused whereas on basis of investigation whereby report was found false, complaint under S.182, Penal Code against accuses was filed by Sub-Inspector not in 'capacity as S.H.O.--Complaint, held, was not filed by proper person as provided in law And Court had no jurisdiction to take cognizance of such complaint.
1984 P Cr. L J 772 and Taj Muhammad v. The State 1980 P Cr. L J 1003 rel.
---Ss. 195 & 561-A--Penal Code (XLV of 1860), S.182--Order of Magistrate, approving action of police for disposing of case of accused as false, not supported by any reason and Magistrate only writing word 'approved' on report of police and not applying his own mind-- Proceedings pending against accused quashed.
A. Rashid for the Petitioner.
Makhdoom Abdul Wali for the State.
Date of hearing: 14th April, 1986.
The brief facts to the filing of this quashment application under section 561-A Cr.P.C. are that applicant Dr. Abdul Shakoor filed a case under section 448 P.P.C. read with 14 prohibition Enforcement Hadd Ordinance 1979 at Police Station Bahpdurabad, Karachi. The case was registered by S.H.O. Police Station Bahadurabad, Karachi, on 12-2-1984. The Investigation was handed over to S.H.O. Birgade Police Station, Karachi under the orders of S.P. Central Division. In view of investigation, it was recommended to Assistant Commissioner and S.D.M. Central, Karachi, that applicant had lodged also report and case be disposed of accordingly. The Magistrate approved the recommendation of the Investigating Officer, thereafter, one Sub-Inspector Iqbal Javid of Police Station, Bahadurabad, filed complaint under section 182 P.P.C. against the applicant.
It has been argued by Mr. A. Rashid the learned counsel for the applicant that A.S.I.P. Bahadurabad, was not competent to file a complaint in view of provisions of section 195 Cr.P.C. He has referred to a case reported in 1984 P Cr. L J 772. He has also cited a case of Taj Muhammad v. The State reported in 1980 P Cr. L J 1003.
Mr. Makhdoom Abdul Wali appearing for the State has supported this quashment application.
The case under section 182, P.P.C. is instituted on the direct complaint filed by Sub-Inspector lqbal Javid of P.S. Bahadurabed, Karachi, against the applicant. On the other hand, applicant filed direct complaint against the accused who were not challaned by the police. The direct complaint has been brought on the regular file by the learned Xth Additional Sessions Judge Karachi.
Section 195(1)(a), Cr.P.C. provide that no Court shall take cognizance to any offence punishable under sections 172 to 188 P. P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate, S.H.O. Bahadurabad, registered the F. I. R., filed by applicant whereas complaint under section 182 Cr.P.C. has been filed by Sub-Inspector lqbal David. The Sub-inspector has not filed complaint in capacity as S.H.O. Normally in Karachi S.H.Os are of Inspector grade, therefore, the complaint before the Magistrate, was not filed by proper person as provided in law and learned Court had-no jurisdiction to take cognizance of such complain.
Coming to the other circumstances it is clear that the order of the learned S.D.M. approving the action of police for disposing of the case of applicant as false is not supported by- any reason. In fact all that is stated in the summary is as follows:-
"Approved". He has not applied his mind.
For the above reasons I accept the application and quash the proceedings pending against the applicant. He stand acquitted.
M.Y.H. Petition accepted.
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