' MUHAMMAD AKHTAR SHABBIR, J.-The petitioner seeks quashment of F.I.R. No,84 of 2006 dated 12-5- 2006 registered at Police Station Saddar, Layyah under section 188, P.P.C.
2. Learned counsel for the petitioner contended that F.I.R. Has been registered illegally, without jurisdiction at the time when section 144, Cr.P.C. Was not enforced by the competent authority; that the Court in view of the bar contained in section 195(1) (a), Cr.P.C. Cannot take cognizance of the offence punishable under section 188, P.P.C. He has placed reliance on the cases of Muhammad Idrees v. State (2001 PCr.LJ 593), Muhammad Ayub alias Ranjha v. D.C. Multan (2001 PCr.LJ 1039), Malik Muhammad Ayoob Awan v. Akhtar Lodhi S.H.O. (2001 PCr.LJ 1196) and Sharif v. State (PLD 1975 Lah.1315)
3. On the other hand, learned law officer has vehemently opposed the arguments of learned counsel for the petitioner, contending that the police is competent to register the case if cognizable offence is made out.
4. I have heard the learned counsel for the parties and perused the record.
5. The complainant had filed an application before the Tehsildar/A.C. 1st, Layyah, for the Superdari of crops and appraisement of "mesne" profit of Rabi 2006 on 29-4-2006. Learned A.A.-G. When confronted with had stated that District Nazim had enforced section 144, Cr,.P.C. In the area for two days only w.e.f, 21-4-2006 to 23-4-2006. The case F.I.R. Had been registered on 12-5-2006 on the day of filing of the application i.e, 29-4-2006 by the complainant till the date of registration of F.I.R.
There was no enforcement of section 144, Cr.P.C., meaning thereby the alleged offence was committed or the petitioner has taken or lifted the crops when there was no ban on lifting the crops without the payment shares of Batai to landlord, thus, the offence under section 188, P.P.C. Has not been constituted. The case of the petitioner is not covered within the said offence.
6. So far as the other arguments of the learned counsel for the petitioner is concerned that since the police is not competent to register the case, thus, the Court to whom the challan has been sent or would be sent is also not competent to take cognizance of the matter in view of the bar contained in section 195(l)(a), Cr.P.C. Which is reproduced as under:-
195. Prosecution for contempt of lawful authority of Public Servants.-(1) No Court shall take cognizance-
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.
From the perusal of the above referred provision of law, it is manifestly clear that the Court to whom the challan of the case has been sent under section 188, P.P.C. That can take cognizance of the matter, if complaint in writing by the public servant or by the public servant concerned or some other public servant to whom he is subordinate who is competent to enforce section 144, Cr.P.C. In the area, is sent to the Court. Though the police is competent to register the F.I.R., if from the contents of any application some cognizable offence is made out but there is a bar on the Court to take cognizance of the matter, if written complaint is not sent by the competent authority or the public servant. In this context reference can be made to the case of Sharif and 4 others (supra).
The relevant portions of the judgment is reproduced as under:- ' "Having considered these contentions carefully, I feel that although the police is empowered to investigate a case and file a challan in the Coprt of a Magistrate, a complaint within the meaning of section 4(h), Cr.P.C. Has necessarily to be filed, before the learned Magistrate can take cognizance of the case. It appears that, as in so many other cases where amendments in the Penal Code or the Criminal Procedure Code have been made after the partition, the amendment in Schedule II of the Cr.P.C. Making an offence under section 188, P.P.C. Cognizable was made in a hurry, overlooking the necessity for making a corresponding amendment in section 195(l)(a), Cr.P.C. The result is that a Magistrate cannot take cognizance of a case under section 188, P.P.C.
Unless and until the concerned officer (in this case the District Magistrate or one of his subordinates), files a complaint before the learned Magistrate. "
' The same view has been followed in Muhammad Idrees, Muhammad Ayub and Malik Muhammad Ayub Awan' cases refereed to above. Further reference can be made to cases to Makhdoom Khaliq-uz- Zaman v. The State (1999 PCr.LJ 1081), Muhammad Afzaal v. The State (1999 PCr.LJ 1252) and Ghulam Rasool v. The State (1998 PCr.LJ 584).
7. In the case in hand as discussed in the -preceding paragraphs, at the time of commission of offence, section 144, Cr.P.C. Had not been prevailing in the area, therefore, no offence was committed by the accused petitioner and without adverting to this legal aspect of the case the police had registered this criminal case against the delinquent, therefore, the F.I.R. In question is not sustainable in the eyes of law as the same has been lodged illegally and without lawful authority.
Further, no complaint in writing had been sent along with F.I.R. To the Court of competent jurisdiction, so, said F.I.R. As well as proceedings in the said case, if pending before the trial Court are hereby quashed.
F.I.R. Quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.