' AZIZULLAH M. MEMON, J.---Appellant Abdul Raheem has filed this Criminal Acquittal Appeal against the order, dated 17-6-2003, passed by Civil Judge and F.C.M., Daulatpur in Criminal Case No.66 of 2001 (State v. Syed Manzoor Hussain) of Police Station, Daulatpur pertaining to F.I.R. No.1 of 2001, whereby application under section 249-A, Cr.P.C. Stands allowed by the trial Court and respondent Manzoor Hussain acquitted.
2. Heard Mr. Syed Madad Ali Shah, learned counsel for the appellant, Mr. Masood A. Noorani, learned Additional Advocate-General Sindh for the State and Mr. Allah Bachayo Soomro, learned counsel for the respondent No.1.
3. Facts giving rise to the filing of the present acquittal appeal are to the effect that respondent No.1 earlier lodged F.I.R. Bearing No.39 of 2001 at Police Station Daulatpur on 16-6-2001 alleging therein that accused persons of the said F.I.R. Duly armed with Klashnikovs etc., entered into the house of Wazir Bagri and Hussain Bux Machi and inflicted blows of the said rifles on the persons of the woman-folk respectively; Respondent No.1 and others went running on the cries to intervene but the accused of the earlier F.I.R. Inflicted butt blows on their persons also; other persons namely Pathan and Lal Bux also sustained injuries at their hands.
4. In short, investigation into the alleged incident of the said earlier F.I.R. Proved that the same was lodged falsely and, therefore, another/separate F.I.R. For offence under section 182 P.P.C. Was registered against the respondent No.1 (the complainant of the said earlier F.I.R.).
5. During the proceedings of the case under section 182, P.P.C., application under section 249-A, Cr.P.C. Was filed, which was allowed by the trial Court vide order impugned herein with the following observations:-- "Then S.H.O. P.S., Daulatpur produced proceedings under section 182, P.P.C. Against the complainant.
Charge was framed against the accused at Exh. 2 to which accused pleaded not guilty and claimed trial. Since last one year process has been issued but the witnesses for the prosecution have avoided to examine them on one or the other ground. Ultimately this application was filed on 21-5-2003 and notice was given to prosecution. I have heard learned advocate for the accused and P.I. For the State and perused the record. In this case F.I.R. Was lodged by A.S.-I. Manzoor Hussain Hingoro whereas proceedings under section 182 P.P.C. Were produced by S.H.O./ Inspector Imdad Ali Solangi. Whereas it is settled law that the police officer who lodged the F.I.R. Could only produce the proceedings under section 182, P.P.C. And not anyone else. In this regard reliance is placed on 1990 PCr.LJ 777 (Peshawar) where in it has been held that section 195 Cr.P.C. Does not permit any delegation of authority by public servant concerned and Magistrate could not take cognizance of the Complaint which proceedings were liable to be quashed. Conviction and sentence of accused under section 182, P.P.C. Were set aside in circumstances and complaint was dismissed. Reliance is also placed on 1989 PCr.LJ 1831.
' An order under section 249-A, Cr.P.C. Can be passed at any stage of the case and such power can be exercised even before the Charge is framed and also without complaint being heard at all. In this regard reliance is placed on 1993 PCr.LJ 524 Karachi. Keeping in view the above facts and case-law referred above, I am of the opinion that there is no probability of the accused being convicted of the alleged offence. I therefore, for the reasons discussed above, allow this application in the interest of justice and acquit the accused Manzoor Hussain Shah under section 249, Cr.P.C. Of the charge. Accused is present on bail his bail bond stands cancelled and surety discharged."
6. Learned counsel for the appellant has filed a certified copy of the diary sheet of the trial Court, which clearly indicates that the accused/respondent was not making appearance before it till the date of hearing of 27-3-2002. Further that P.Ws. Abdul Khaliq and Inayatullah actually made appearance before the trial Court on the dates of hearing of 27-9-2002 and 16-10-2002 respectively, but their depositions were not recorded by the trial Court; P.W. Abdul Rahim appeared there on 18-2-2003 while P.Ws. Abdul Rahim, Sajid and Inayatullah appeared on 22-4-2003 and P.W. Abdul Raheem (27-5-2003), P.Ws. Taj Muhammad, Inayatullah and Sajid (31-5-2003) and P.W Sajid (7-6-2003) actually appeared again and again before the trial Court, but their depositions were not recorded.
7. Proceedings under section 182 P.P.C. Were submitted before the trial Court by the S.H.O. Of Police Station Daulatpur, who was successor-in-office of the police official during whose days the earlier F.I.R. For alleged offences under sections 324, 337-A(ii) and 436 P.P.C., 14 of Offences Against Property (Enforcement of Hadd) Order, 1979, was registered on 15-6-2001.
8. In this case, no point of delegation of powers ever arose by one police official to the other for the purposes of submission of proceedings under section 182, P.P.C. Before the trial Court; on the contrary, successor-in-office, in the discharge of his official duties, is bound to take all legal actions, which his predecessor(s) were duty bound to do/discharge; Judicial notice of the fact can be taken of the fact that mostly the predecessor-in-office get retired and either they go away too far off places of their choice on retirement; some of them expired and it is found difficult or even impossible to secure their presence to make the compliance of the directions, to the effect that the same official or his superior has to file the complaint against a person who had lodged the F.I.R.
Before him, which, on investigation, proved to be false; it cannot be presumed that intention of the law maker would be to make the law redundant wherever such officials are not found available to lodge such F.I.R. Under section 182, P.P.C.
9. Wherever relevant provisions of law make it incumbent upon the successorin-office to take necessary steps towards compliance of the legal requirements under different provisions of law, which his predecessor-in-office was directed by law to do/discharge in such situations, all successors-in-office are bound so to discharge all such official duties. Therefore, S.H.O., Daulatpur Police Station competently submitted proceedings under section 182, P.P.C. Before the trial Court with a prayer to take legal action against the respondent No.1 for allegedly having lodged F.I.R., bearing No.39 of 2001 at the same police Station, falsely.
9-A. In Muhammad Afzal Khan v. The State (PLD 1962 Supreme Court 397), Honourable Supreme Court was pleased to record the following observations:-- "While we are unaffected by the argument put forward there is another reason why we would not alter the conviction to one under section 182, P.P.C. As we have already observed that it is a case where the trial Court has refused to take cognizance. We do not think we should convict the appellant of an offence of which the Court has refused to take cognizance. We may state here that we are not satisfied as to the correctness of the order passed by the Additional Sessions Judge relating to the offence under section 182, P.P.C. The order was passed on the assumption that there was no complaint against him of an offence under section 182, P.P.C. This we regard as a very technical view because the Deputy Commissioner had prepared a complaint and had handed it over to the police in order that they may investigate the case and send up the appellant for trial.
We do not think it should make any difference that instead of filing a regular complaint before the Magistrate the Deputy Commissioner had filed a complaint before the Police and had asked them to investigate the case and send up the accused for trial. However, in spite of this we are not prepared to alter the conviction to one under section 182 because the Additional Sessions Judge, though for a wrong reason, did actually refuse to take cognizance. When a trial Court refuses to take cognizance we can direct it to do so, but we do not think we should ourselves convict the accused.
' Under the circumstances, we could be setting aside the order of acquittal under section 182, P.P.C.
Send back the case for trial, but we do not feel it necessary to do so because the acquittal recorded by the Additional Sessions Judge is not a bar to further prosecution. It is open to the public servants concerned to file complaints on which proceedings can be taken de novo."
10. In Aurangzeb v. The State (1994 SCM R 1280) Honourable Supreme Court was pleased to record the following observations:-- "The learned counsel for the appellant submitted that by virtue of section 195(1)(a), Cr.P.C.
Complaint can be filed either by a public servant concerned or by some other public servant to whom he is subordinate. He submitted that as the Deputy Commissioner is a subordinate to the Commissioner, therefore, the complaint was incompetently filed and no proceedings could be initiated against the appellant. Learned counsel for the appellant has referred to Malik Muhammad Sadiq v. The State (1977 PCr.LJ 445), Mst. Nawab Begum v. The State (1972 PCr.LJ 79), Ali Ahmed v.
The State (1984 PCr.LJ 772), and the State v. Syed Sardar Shah Bukhari (PLD 1975 Lah. 1407). In the instant case the appellant filed a complaint before the Divisional Commissioner, who simply forwarded the same to the Deputy Commissioner without any action or direction. The Deputy Commissioner took cognizance of the complaint filed by the appellant. He appointed an Inquiry Officer. The Inquiry Officer examined the witnesses on behalf of the parties and then recorded his opinion that the complaint was false. It was on the direction of the Deputy Commissioner that the A.D.C. Conducted the inquiry. The report was submitted to the Deputy Commissioner by the Investigation Officer. The report was not sent to the Commissioner for taking any further action. The Deputy Commissioner himself scrutinized the inquiry report and directed that a complaint be filed under section 182, P.P.C. Against the appellant. It was not the requirement of law that as the complaint by the appellant was submitted to the Commissioner, therefore, he should have passed the orders. The Deputy Commissioner, in the given circumstances of the case for all intents and purposes, was the officer concerned. The allegation made by the appellant in his complaint were repeated before the Inquiry Officer. It is an admitted legal position that a complaint can only be filed either by a person, who is a public servant concerti. Or by public servant to whom hail subordinate. There are long lines of judgments in support of this view, such as Nasim Akhtar Soofi v.
The State (1990 PCr.LJ 336), Abdul Hanan v. The State (1990 PCr.LJ 777), Muhammad Boota Anjum v.
The State (1990 PCr.LJ 1538), Nizamuddin Samejo v. S.D.M. (1988 PCr.LJ 988), Sher Muhammad v.
Emperor (AIR 1940 Lah. 15), and Daulat Ram v. State of Punjab (AIR 1962 SC 1206). There is a contrary view in Ashfaq Ahmed Cheema v. The State (1985 PCr.LJ 2104), wherein it has been observed that 'it was not necessary that Divisional Commissioner to whom original application was submitted, should have filed a complaint. Police officer being a public servant was competent to lodge complaint."
10. Under the circumstances of the case, the successor S.H.O. Of Daulatpur Police Station, in discharge of his official duties, competently submitted proceedings under section 182, P.P.C.
Against the respondent No.1 and the same apparently do not suffer from any legal infirmity; so also, witnesses of the prosecution were repeatedly appearing before the trial Court, but their depositions were not recorded by it; therefore, this Criminal Acquittal Appeal is hereby allowed, impugned order is set aside with direction that the case stands remanded to the trial Court further to proceeds with the same according to law and to decide it on merits. .##TS