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Criminal Miscellaneous Application No. 239 of 1961, decided on 19th January 1962.

, S. 420 read with Ss. 4(h), 190 & 200, Criminal Procedure Code (V of 1898)‑Whether complaint under S. 420 must be made by person cheated‑Offence charged to be determined from perusal of complaint and statement of complainant recorded under S. 200, Cr. P. C.

Muhammad Rashid v. The State P L D 1959 Lah. 372 rel.

Muhammad Hayat Junejo for Applicants.

Shamsuddin for A. A.‑G. for the State.

Respondent No. 1: in person.

Date of hearing : 15th January 1962.

This is a criminal miscellaneous application under sections 439 and 561‑A, Cr. P. C., filed on behalf of one Jassumal son of Hemumal and seven of his relations praying that a criminal case under section 420, P. P. C., filed by Abdul Quddus Bihari against the applicants and now pending in the Court of the learned Resident Magistrate, Tando Adam be quashed.

2. The facts giving rise to this matter are that on 8‑5‑1961, Abdul Quddus Bihari filed a complaint against the eight appli cants in the Court of the Sub‑Divisional Magistrate, Shahdadpur under section 420. P. P. C., alleging that the accused‑applicants, who are highly influential and wealthy persons, have cheated the Government of Pakistan as well as deserving claimants including the complainant by securing bogus mutation on false statements and thus, grabbing the property of Kodumal and Tarachand, sons of Hemumal and preventing the same from going into the evacuee Pool. The S. D. M., Shahdadpur that same day marked this complaint to the Resident Magistrate, Tando Adam, who, after recording the statements of the complainant Abdul Quddus Bihari, on 9‑5‑1961, under section 200, Cr. P. C., passed the following order :‑

"Offence, if any, appears to fall under section 420, P. P. C. Issue B. Ws. in the sum of Rs. 500 against each accused.

Hearing on 18‑5‑1961.

(Sd.) Illegible,.

R. M. Tando Adam.

dated 9‑5‑1961."

Against this order the present Criminal Miscellaneous Application was filed in this High Court on 1‑6‑1961, on which day my learned brother Munshi, J. was pleased to admit the matter, direct Issue of notice and to order interim stay of proceedings of the lower Court.

3. Mr. Mohammed Hayat Junejo, Advocate, appearing on behalf of the eight applicants, has raised several interesting points each of which will be set out and considered below seriatim.

4. His first point was that the complainant bad no locus standi to file this plaint inasmuch as he was not the person cheated. In support of this contention Mr. Junejo referred to Surendranath Saha v. The State (P L D 1960 Dacca 528), wherein it was held by a Bench of that High Court that:--

"a complaint under section 420 of the Penal Code, 1860, must be preferred by the person who is actually cheated. Person other than one who is actually defrauded has no locus standi to make such a complaint."

Mr. Junejo was frank enough to invite my attention to a contrary view expressed by Shabir Ahmad, J. in Muhammad Rashid v. The State (P L D 1959 Lah. 372), where his Lordship has stated that:--

"Though in some cases it would be desirable that the person cheated should initiate the proceedings before the Court moves in the matter, it cannot be said that it is incumbent that the person who has been cheated should initiate criminal proceedings for the offence."

5. Dealing with this very point Mr. Shamsuddin, Advocate appearing on behalf of the State, referred to section 190, Cr. P. C., under which cognizance of offence is taken and pointed out that any person can set the criminal law in motion. Although Chapter XV of the Code of Criminal Procedure, in which section 190 appears, contains other sections such as 195, 196, 198 and 199 placing restrictions on who can bring a complaint in certain cases mentioned therein, section 420, P. P. C., is not included in any one of these sections, Mr. Shamsuddin referred to Gajraj Sinha v. Emperor (A I R 1935 All. 938) and to the statement therein that:‑

"a complaint need not necessarily be made by the person injured, but may be made by the person aware of the offence. The rule is that if a general law is broken, any person has a right to complaint whether he himself has suffered any parti cular injury or not. This general rule is however subject to exceptions mentioned in sections 198 and 199, Criminal P. C. where certain offences are stated to be complainable only by specified persons."

Similarly in Basirullah v. Asadulla (A I R 1929 Cal. 639), it was pointed out that there can be no question that a complaint may be made by any person who knows about the commission of an offence and not necessarily by injured party. Moreover, the definition of com plaint in section 4, Cr. P. C., supports the view that any person who knows about the commission of an offence may make a complaint. In 15 Criminal Law Journal 369, Pratt, Judicial Com missioner of the Former Sind Judicial Commissioners' Court held that:‑

"Every member of the public has a right to set the law in motion by complaint, whether he is himself a witness of the facts which prima facie constitute an offence or not."

6. In the present case, it is the complaint of the complainant Abdul Quddus Bihari as mentioned by him in the body of his complaint that he himself is amongst those deserving claimants who have suffered at the hands of the applicants and have been cheated by them. I find myself in agreement with the view expressed by Shabir Ahmad, J. in Muhammad Rashid v. The State, and also with the view taken in the three cases referred to by Mr. Shamsuddin. I am not, therefore, inclined to accept this first argument of Mr. Junejo that the complainant has no locus standi to bring this complaint.

7. The second contention of Mr. Junejo is that a reading of the complaint discloses no specific offence, the allegations are vague and general and no particular offence is made out. The answer to this, as pointed out by the learned advocate on behalf of the State, is that the complaint must also be read along with the examination of the complainant under section 200, Cr. P. C., and that if this is done in this particular case there can be no doubt as to the specific allegations made by the complainant against the accused/applicants. I find that a perusal of the complaint coupled with the statement of the complainant as recorded by the Resident Magistrate, Tando Adam, on 9‑5‑1961, clearly indicates the ingredients of an offence under section 420 P. P. C. which section is also mentioned at the heading of the complaint in question. Thus, I find no force in this second contention of the learned advocate of the applicants.

8. Mr. Junejo's third contention is that the complainant Abdul Quddus Bihari is a notorious person who has made a habit of filing such complaints and whose previous complaint against these very applicants had been quashed by this High Court in Criminal Revision Application loo. 38 of 1961, decided on 26‑6‑1961. This particular criminal revision application, I find, was decided by myself and the facts thereof are clearly distinguishable from the facts of the present case. Besides, there is nothing on the record of the present case which has so far not yet proceeded and in which not a single witness has been examined to establish that the complainant is a notorious person given to filing vexatious complaints.

9. Mr. Junejo's fourth argument is that the order of the trial Magistrate issuing process is uncertain and bad‑in‑law because the words used therein are :‑

"Offence, if any, appears to fall under section 420, P. P. C."

In support of this contention Mr. Junejo referred to the judgment of Sir George Constantine in Hari Krishen Pachisia v. Muhammad Yakub (P L D 1955 Sind 53) and also to my own judgment in Criminal Revision Application No. 38 of 1961. In the case reported in Hari Krishen Pachisia v. Muhammad Yakub, it was pointed out that:‑

"It is for the complainant to state a case showing that an offence has and not merely may have occurred. Neither in the complaint nor in the verification is there the slightest allegation that at the time of receipt of Rs. 5,000 the accused intended to deceive the complainant . . . . ."

But, in the instant case I find that both in the complaint as well as in the statement of the complainant recorded under section 200, Cr. P. C., the ingredients of the offence of cheating are fully set out and, therefore, the mere fact that the Magistrate when directing the issue of process has expressed himself hesitatingly by using the words :‑

"Offence, if any, appear to fall under section 420, P. P. C.",

cannot lead to a conclusion that there is any uncertainty as to the nature of the offence involved in this case. As mentioned above, both the complaint and its verification in this instant case are such as to distinguish the facts of this case from the case reported in Hari Krishen Pachisia v. Muhammad Yakub and also from the Criminal Revision Application No. 38 of 1961.

10. The last contention of Mr. Junejo is that no names of prosecution witnesses have been mentioned in the complaint filed in this case. Turning to the original complaint contained in the R & P received from the lower Court I find that whereas the body of the complaint is in typescript, in the left hand margin there is a writing in Urdu manuscript containing the names of the prosecution witnesses. Mr. Junejo pointed out that two certified copies of this complaint obtained by him from the Court of the Magistrate on 13‑5‑1961, and again on 22‑5‑1961, contained no name or names of any prosecution witnesses. His suggestion, obviously, is that these names were added subsequently. I have looked into this allegation and I find that the present revision application was filed in this High Court on 1‑6‑1961. On which date the record was called for. The letter from the Court of the Resident Magistrate, Tando Adam, forwarding the R & P to this High Court is dated 3‑6‑1961, and the R & P was received in this High Court on 5‑6‑1961. The point that no names of witnesses were mentioned in the complaint was first taken in the present revision application so that if this omission bad to be supplemented it could only have been done after the record reached this High Court. I cannot bring myself to believe that while the record of this case was in the possession of this High Court such interpola tion could have taken place, and it seems to me that the reason why the names of these witnesses do not find place in the certified copies secured by Mr. Junejo from the lower Court is that the copyist in that Court contended himself by making out copies only of the typescript and not of the Urdu manuscript which, language, in all probability he may not have been able to read.

11. Having, therefore, considered this application and the arguments advanced by the learned Advocate on behalf of the applicants, I am of opinion that there is no substance in the present criminal miscellaneous application and that it should be dismissed.

S. B./A. H.

Application dismissed.

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