1. This Cr. Revision Application is directed against the impugned order dated 9.1.04 and 20.11.2004 with the prayer to restore the Appeal No, 16/2002 in the case of Tariq Latif vs. Mst. Jamila Sultana and another and remand the appeal to the learned 1st Additional Sessions Judge Karachi South with the direction that the appeal of the appellant may be heard and disposed of on merit. Notice of this Cr. Revision application was issued and in response to notice Mr. Rizwan H. Nadeem Advocate had filed power on behalf of Respondent No, 1 and learned State Counsel has put appearance on behalf of Respondent No, 2.
2. The brief facts of the case are that on 10.7.2001 Mst. Jamila Sultana filed a direct Complaint No, 374/2001 and the same was registered by Xth Judicial Magistrate at Karachi South. The trial Court proceeded with the Complaint and finally convicted the applicant under Section 341 PPC and sentenced him to undergo simple imprisonment for one month and fine of Rs, 5000 and in-default of payment of fine he will further suffer simple imprisonment of seven days vide judgment dated 27.5.2002. The trial Court has also awarded compensation of Rs, 5000/- to the complainant under Section 544 Cr.P.C. and in-default whereof the applicant will undergo simple imprisonment for one month. The appellant was remanded to judicial custody by trial Curt to serve out the sentence. Cr.
3. Appeal No, 16/2002 was filed by applicant on 27.5.2002 before learned Sessions Judge Karachi South, the said appeal was transferred to learned 1st Additional Sessions Judge Karachi South. The applicant also filed application before appellate Court under Section 426 Cr.P.C. for suspension of sentence awarded by Xth Judicial Magistrate Karachi South. The appellate Court after hearing the learned counsel for the parties suspended the sentence and released applicant on bail. The applicant furnished required surety in the appellate Court, after release from jail custody the applicant appeared on 1.9.2004 and date was extended by Reader of the trial Court but due to misunderstanding in the case diary he was marked absent and NBW issued against him an bail was cancelled. On 20.11.2004 the Bail Application No, 16/2002 of the applicant was also dismissed for non-prosecution.
4. It is prayed that orders dated 1.9.2004 and 20.11.2004 passed by Ist. Additional Sessions Judge Karachi South may be set aside. During the course of arguments on 16.3.2005, it was pointed out by Court to learned counsel for Respondents Nos, 1 and 2 to satisfy the Court about maintainability of direct complaint as the same was filed by Mst. Jamila Sultana through her legally constituted attorney (Mst. Rubina Nawab) against the applicant/accused as no power can be extended by complainant to any body else to file direct complaint on his behalf regarding the offence under PPC. As per prosecution version, complaint is that all accused voluntarily obstructed complainant Mst. Jamila Sultana, a land lady of Bungalow No, 62-B, 13th Street, Gulshan-e-Faisal, Bath Island, Karachi, who being tenant of complainant were residing in the same Bungalow. On 29/30.6.2001 at midnight the accused after breaking lock of the complainant, placed another lock on their own door which is excess to the roof where commodities of complainant were stored, thus wrongly restrained the complainant from her legal rights, roof of her bungalow and committed offence punishable under Section 341 PPC. The accused Hammad Latif threatening by way of spiting at her face and attempt to insult the modesty of Mst. Amna, hence he committed an offence punishable under Section 509 PPC.
5. Mr. Mehmood A. Qureshi and Mst. Akhtar Rehana for the State have conceded that the direct complaint filed by Mst. Jamila Sultana thought her legal attorney Mst. Rubina Nawab was not maintainable in law. Trial of the accused before the learned Xth Judicial Magistrate was without lawful authority and the conviction and sentence awarded by the trial Court is illegal and without lawful authority. Mr. Rizwan H. Nadeem Advocate for the respondent is unable to show any provision of law under which the complainant can constitute attorney for filing FIR or direct complaint in Court having jurisdiction regarding commission of offence, however he has relied upon the case of The Crown vs. Balmokand and others reported in Indian Law Reports 1928 Page 678.
6. I have heard learned counsel for the respective parties, examined material placed on record, and case law cited at bar. While issuing the process to the accused party, it is necessary to examining the complainant under Section 202 Cr.P.C. on the basis of statement of Mst. Rubina Nawab attorney therefore an illegal order was passed by trial Court was held and without jurisdiction, therefore, there is no need to remand the case to the appellate Court to decide the appeal on merits. The cognizance taken without recording the statement of Mst. Jamila Sultana and thereafter examining the witnesses under Section 202 Cr.P.C. and taking cognizance offence is lawful authority complaint has defined in Section 4(h) Cr.P.C. it will be advantageous to produced the above section.
7. "4 (a) Advocate General" "Advocate-General" Includes also a Government Advocate or, where there is no Advocate General or Government Advocate, such officer as the [Provincial Government] may, from time to time, appoint in this behalf; (b)"Bailable offence," Non-bailable offence," "bailable offence" means an offence shown as bailable in the Second Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;
(c) "Charge." "Charge" includes any head of charge when the charge contains more heads than one; (f). "Cognizable offence." "Cognizable case." cognizable offence means an offence for, and "cognizable case" means a case in which.a police-officer, may, in accordance with the Second Schedule or under any law for the time being in force, arrest, without warrant.
(h) "Complainant," "Complainant" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."
8. It is provided therein that complaint means allegations made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown committed an offence, in the instant case the complaint has been filed through constituted attorney Rubina Nawab as complainant. As per perusal of judgment of learned Xth Judicial Magistrate Karachi South and her statement recorded under Section 200 Cr.P.C. The preliminary inquiry was held by the concerned police station and direction was issued to concerned SHO after receipt of complaint under Section 202 then case was registered against accused Tariq Latif. It is surprising to note that Mst. Jamila Sultana was called by Trial Court as Court witness as Exh. 17.
9. Whereas the trial Court after framing charge the complainant Rubina Nawab has been examined as Ex.
11. Admittedly trial Court had not recorded statement under Section 200 of Mst. Jamila Sultana by doing so he has committed illegality. It is clearly provided in proviso in Section 200 Cr.P.C. that safe way complaint has been made by person to Court in such direction be made unless the complainant has been examined on oath under provision of Section 200 Cr.P.C. It was obligatory that .learned trial Court to examine the complainant on oath before conducting inquiry under Section 202, such examination was pursuit by summoning Mst. Jamila Sultana as Court witnesses during the trial ,proceedings was not proper on the part of the Court to summon the said witness in criminal case as complainant or witness of the incident can place his case before the Court of law by constituted attorney therefore, there is no need to remand the matter to the appellate Court to decide the appeal on merits. As the direct complaint was filed by unauthorized person: As per prosecution witness it was alleged that the accused wrongfully restrained complainant Mst Jamila Sultana but no FIR was lodged by her nor she preferred to file any complaint to the concerned Court but criminal Case No, 374/2001 was filed in the Court of Xth Judicial Magistrate Karachi South through her Attorney Mst. Rubins. Nawab. As per allegations no any obstruction or no wrongfully restraint was committed by any person in the way of complainant, prosecution must prove that the complainant has a right to proceed to word particularly direction or way. If it is admitted as prosecution obstructed by accused to Mst. Jamila Sultana but no complaint was filed by her therefore complaint filed by Mst. Rubino. Nawab in the Court of Xth judicial Magistrate Karachi South was without jurisdiction and trial Court wrongly proceeded without lawful authority and made departure from the procedure provided under the law. Keeping in. view the above position, no fruitful purpose will be achieved to remand the case to the trial Court therefore the judgment passed by the learned Xth Judicial Magistrate vide order dated 27.5.2002 is not sustainable and the same is set aside. The proceedings against the applicant is quashed. The above are the detailed reasons of the short order dated 16.3.2005. Cr. Revision No, 03 of 2005 is disposed of alongwith listed application.