1. ' The applicant seeks quashment of complaint filed by respondent No, 2 against the applicant and 20 others before S. D. M. Civil Lines, Karachi under sections 382, 342 and 109, P. P. C. On 28-6-1976.
2. And the process issued by A. C. & S. D. M. Civil Lines, Karachi on the same day under the same sections against the present applicant and 3 others.
3. ' The relevant facts are that on 12-6-1976 the applicant No, I had filed an F. I. R. Under section 380, P.
4. P. C. At Civil Lines Police Station, Lahore as an attorney of his wife Mst, Surrya alleging that Messrs Marker Alkaloids had taken the house of the complainant on rent at Rs, 1,175 per month and that Mine Marker had committed theft of the fittingg provided by the complainant in that house. The fittings were described in details in the said F. I. R. And they are almost the entire fittings and fixture contained in the house and their value was mentioned at Rs, 5,000.
5. ' In pursuance of that F. I. R. The applicant with A. S. I. Abdul Waheed and Constable Muhammad Azam and Ashfaq Ahmed went to the house of Minochar Kekobad Marker at Bath Island, Karachi on 17-6-1976 and arrested Mr. Minochar and took into their possession several items which are alleged to be different from these mentioned in the F. I. R. Filed by Maqsood Aziz at Lahore. Thereupon Minocher filed the impugned complaint and alleged that the F.
1. R, filed by Maqsood Aziz was false. He further alleged that Abdul Waheed took out the revolver and threatened the complainant and that the complainant was handcuffed by the Constable Muhammad Azam and the servants of the complainant were arrested the whole house was ransacked and even the suit-cases were opened, and the applicant and the Police party collected number of belongings of the complainant including their 3 Chandeliers. It was further stated in the complaint that Abdul Waheed did not prepare a list of articles and they were given to Maqbool Aziz and Maqsood Aziz transferred the same to Ashfaq and who in turn transferred the same to Lahore.
6. It was further alleged that value of the articles mentioned in the F. I. R. Of Maqsood Aziz was worth Rs, 5,000 while the articles of Minocher seized by the applicant and Police were worth Rs, 70,000 and the. Articles taken away from the house of the complainant did not tally with the articles mentioned in the F.
1. R. Of Maqbool Aziz in Lahore. In these circumstances, the complainant alleged that the F. I. R. At Lahore was registered with the intention of stealing articles from the house of complainant Minocher at Karachi.
7. ' Mr. Hayat Junejo, the learned counsel for the complainant has argued that the complaint could not be filed by Minocher Marker at Karachi as in effect this complaint was a complaint under section 182, P. P. C. As the complainant at Karachi had alleged that the F. I. R. At Lahore was false. Mr. Hayat Junejo submitted that section 196, Cr. P. C. Was a bar to the filing of a complaint under section 182, P. P. C. By any person unless this complaint was filed by the Officer before whom the false information had been laid. He, therefore, contended that a private person could not file a complaint under section 182, P. P. C. His contention was that in effect the complaint at Karachi was nothing but a complaint under section 182, P. P. C. He relied upon PLD 1966 Kar. . 207, where Farooqi, J., quashed the proceedings filed by Maulana Qadus Behari against one Ram Chand, Advocate wherein the allegation had been made that Ram Chand was induling in foreign exchange smuggling. It was held that the facts in that case disclosed essentially an offence for which a complaint of the Court or the public servant is required under section 195 of Cr. P. C. Another case cited was 1975 P Cr. L J 1137 where A. H. Qureshi, J., held that complainant cannot be permitted to resort to general law on the basis of facts which attract the provision of special law. It was held there that complaint under section 292, P . P. C. (showing the obscene objects) could not be filed where a complaint under the special law of Censership Act could be filed. These two cases deal in respect of special offence, and, therefore, they are not really relevant for the purposes of this application.
8. Mr. I. A. Hashmi, the learned counsel for the respondent No, 2 has pointed out that the complaint of Minocher is not merely alleging that th F. I. R. At Lahore was false, but it is further alleging that the Police Officers and applicant Maqsood had acted in a highhanded manner and committed .A different illegalities and had taken in their possession even those article which were not mentioned in the F. I. R., and thus, the complaint o Minocher was in fact a complaint under section 382/342/109, P. P. C., and, therefore, it could be not be said to be a mere complaint unde section 182, P. P. C.
9. Which could be filed only by an Officer as required uncle section 195, Cr. P. C.
10. ' Mr. Abdul Latif Channa counsel for the State has supported Mr. Hashmi and has stated that the Police Officer in company of the applicant ha almost committed robbery. He has further pointed out that under section 165, Cr. P. C. The Police Officers are entitled to make a search within the area of their own Police Station without obtaining the warrant from the Distric Magistrate and since Abdul Waheed A. S. I. Was not a Police Officer of Karachi, therefore, he was not entitled to make any search and to recover any article at Karachi. He has also pointed out that under section 166, Cr. P.
11. C. Abdul Waheed should have required the S. H. O., Civil Lines Police Station, Karachi to make the search and he should not have himself carried on any search. Mr. Channa has also cited PLD 1970 Kar. 261 where it was held by the then Mr. Justice Muhammad Hayat Junejo that where Sub- Inspector was charged with dacoity, assault and wrongful confinement and the allegations were supported by an independent witness then the accused could not claim that he acted in the discharge of his duty, and therefore, no sanction of the Provincial Government under section 197, Cr.
12. P. C. Was necessary for his trial.
13. ' I agree with the submission of Mr. Hashmi and Mr. Channa and I find that the complaint at Karachi is not in effect a complaint under section 182, P. P. C. Merely challenging the F. I. R. Of Maqsood Aziz at Lahore as false but in fact it goes much beyond that and alleges highhandedness, misconducts and illegalities on the part of the accused and illegalities on the part of the accused and alleged theft against them as they are alleged to have taken possession of even those articles which are not alleged to have been mentioned in the F. I. R. At Lahore. In any case, it would be a matter of evidence as to whether the Police Officer and the applicant have in fact committed an excess or not, and, therefore, I do not feel inclined to quash these proceedings as the same would amount to stifling of prosecution at a premature stage particularly when the Police Officers are alleged to have exceeded their authority and none of the accused has so far appeared before the criminal Court at Karachi. I am, therefore, dismissing this application for abashment but it would be open to the applicant to move for his acquittal under section 249-A of Cr. P. C. After the recording of evidence if circumstances justify it.