' These are 5 connected applications for abashment of prosecution pending against the applicant and respondents Nos. 2 to under section 8 (1) of Censorship of Films Act, 1963, pending in the Court of A. C. And S. D. M., Liaquatabad: Karachi.
' The relevant facts are that, the applicant was distributor of Punjabi Film `Khatarnak'. The said film was certified by the Board of Film Censors for exhibition after they had excised some portion of a dance which showed the legs of the dancer filmed in an objectionable way. It is the case of the prosecution that between the night of 16th September 1974 and 17th September 1974, the police raided 11 cinema houses of Karachi where the said film Khatarnak' was being exhibited and took into possession reel No, 3 of the said film which was found to contain the excised portion. The petitioner was prosecuted under section 299 of P. P. C in 11 different cases, but those prosecutions have been quashed by the High Court as reported in 1975 P Cr. L J 1137. On 17th September 1974 the Secretary, Board of Film Censor, Pakistan made an application to the District Magistrate, Karachi which is entitled as complaint under section 8 (1) of the Censorship of Films Act, 1963. Paras, Nos. 3 and 4 and the concluding portion of the said complaint are reproduced below :- "That it was found that in the song dance "TOUCH ME NOT" the reel contained the excised portion of the close-up of dancers' leg trim the bottom angle. That the above said accused persons have committed an offence under section 8 (1) of the Censorship of Films Act, 1963. It is therefore prayed that the S. H.
0. Pak Colony P. S. May be authorized under section 155, Cr. P. C. To investigate and take action according to law,"
' The District Magistrate, Karachi granted permission to investigate under section 155, Cr. P. C. On 19th September, 1974. This permission under section 155, Cr. P. C, meant that the S. H.
0. Pak Colony Police Station was authorised to investigate and take action according to the law as requested by the Secretary, Board of Film Censorship.
' The police after investigation, challaned he accused on 12th October 1974 into the Court and proceedings started on 23rd October 1974. However no evidence was recorded uptil 3rd May 1976 in spite of various bearings. These petitions were therefore filed in this Court and they were admitted on 20th May 1976 and the proceedings were stayed.
' Mr. Muhammad Hayat Junejo, learned counsel for the complainant has contended that the alleged complaint under section 8 (1) of Censorship of Films Act, 1963 dated 17th September 1974 is not the complaint as required under section 9 of the said Act read with section 4 (1) (h) of Cr. P. C.
His contention is that the application of 17th September 1974 by the Secretary of Board of Censor is in fact merely an application for obtaining permission under section 155, Cr. P. C. For investigation by the police. The police could not have investigated into the offences under section 8 of the said Act as it was non-cognizable crime, therefore, the permission of the Magistrate was necessary as otherwise even the investigation would have been held to be illegal. He argued that after the investigation had been made by the police they could not have directly challaned the ,-ccused into court but should have moved the Board of Film Censor to file a proper complaint before the Court for taking action. Section 9 of the said Act reads as under :- ' Section 9 (1).-No Court shall take cognizance of any offence punishable under this Act, except on complaint by an authority or an officer of an authority authorised by it in this behalf."
' Section 4 (1) (h) of Cr. P.,C, reads as under :- "Complaint.-'Complaint' 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."
' It is therefore clear from the reading of these two sections together that the Board of Censor had to file a complaint under section 9 requesting the Court to initiate proceedings under section 8 of the Act and the challan by the police is not such a complaint. The application of 17th September 1974 had merely asked for a permission for investigation and had not requested for an action by the Magistrate and therefore it could not be treated as complaint under section 9. He contends that in fact the proceedings have been initiated against the applicant on a challan from the police and the definition of complaint under section 4 (1) (h) of Cr. P. C. Specifically excludes report by the police from the definition of a complaint therefore the challan is not a complaint and hence these proceedings are hit by section 9 of the Films Censorship Act which insists upon a complaint by an authorised officer. Even the F.
1. R. Filed by the Secretary Board of Films Censor does not have the effect of a complaint under section 9 of the Act, because an F. I. R. Is not an allegation made in writing to a Magistrate with a view of his taking action.
Mr. Manzoor Hussain, learned counsel for the State concedes that the present proceedings initiated on a challan by police are not the proceedings on a complaint by a Board of Films Censor as required under section 9 of the said Act read with section 4 (1) (h) of Cr. P. C. I am in, agreement with these submissions and I find that section 4 (1) (h) of Cr. P. C. Excludes the report of a police officer from the definition of the complaint, and therefore, the challan by police could not be regarded as a complaint as envisaged under section 9 of Censorship of Films Act, 1963 read with section 4 (1) (h) of Cr. P. C. The alleged complaint of 17th September 1974 was in effect an application under section 155, Cr. P. C, merely asking for permission of investigation. The same cannot be regarded as a complaint under section 9 as the Films Censor Board had probably intended to get a thorough investigation by police and thereafter they might have stipulated to file a complaint if the same was justified by the police investigation. The order of the District Magistrate also shows that he has not treated that application as a complaint, but had treated the same as an application merely seeking permission for investigation by police. The net result is that application dated 17th September 1974 could not be treated as a complaint under section 9 of the said Act and nor the F. I. R. Filed by the Board of Films Censor before police was such a complaint and since the proceedings in the Court were initiated only on the basis of challan by police, therefore, they were hit by section 9 which did not allow any prosecution under the said Act without the complaint from an authorised officer.
' In these circumstances, the 5 prosecutions pending against the applicant under section 8 (1) of Censorship of Films Act, 1963 in the Court of A. C. & S. D. M., Liaquatabad are hereby quashed. It would however be still open to the Board of Films Censor to file a proper complaint if they intend to prosecute the applicant and other accused. I may mention here that in spite of the fact that 5 cases continued pending in the Court of Assistant Commissioner and S. D. M. Between October, 1974 and May, 1976, there was not a single deposition of any P W recorded in spite of the fact that almost all the P. Ws. Were Government officers. The proceedings are therefore quashed, but it is open to the prosecution to file a proper complaint. ,