' BHAJANDAS TEJWANI, J.--- This is an application seeking quashment of the order dated 5-3-2009 passed by the learned IVth Civil Judge and Judicial Magistrate, Larkana approving the summary in F.I.R. No,175 of 2008 Police Station Civil Lines, Larkana under sections 381-A and 408, P.P.C. As false and so also the applicants have also prayed for quashment of the subsequent proceedings in Criminal Case No,143 of 2009 under sections 182 and 211, P.P.C. Pending before the , Court of 1st Civil Judge and Judicial Magistrate, Larkana on the basis of said order dated 5-3-2009.
2. Brief facts giving rise to the above application are that one Aftab Munawar, the intervenor in this application was serving in the company of applicant No,1, whose services were terminated by the applicant's company. During service with company, he was given a car and other articles by the applicant's company and such agreement was executed between the applicant's company and said Aftab Munawar, but he did not return the car and other articles in terms of the agreement, therefore, applicant No,2 being authorized officer of the company filed complaint before ASP City Larkana, in which the applicant No,2 pleaded that the non-return of car and other articles by the said ex-employee of the company will constitute offence punishable under sections 381-A, 408 and 427, P.P.C. By further disclosing in the complaint that said Aftab Munawar has also filed F.C. Suit No,76 of 2007 against the company for Declaration. Mandatory Injunction and Recovery of Damages which is sub judice before the Court of learned IInd Senior Civil Judge Larkana. The ASP City forwarded the complaint to S.H.O. Police Station Civil Lines, Larkana with direction to lodge F.I.R.
And take necessary action. After lodging the F.I.R. a routine investigation was conducted by respondent No,2, during investigation the Investigating Officer did not call the complainant and straightway concluded that the information led before the police was false and recommended such summary for approval to S.P. (Investigation) Larkana and it appears that without application of mind and without even going through contents of the F.I.R. And any material placed before him, he agreed with the investigation and approved the summary of final report of Investigating Officer by passing his three lines order "Disposed of in '13' Class". Thereafter the Investigating Officer submitted such report before the learned IVth Civil Judge and Judicial Magistrate Larkana for approval of the summary as false and disposal of the case in '13' Class.
3. The learned Magistrate by his order dated 5-3-2009 agreed with the opinion of the police and recorded his findings that the ingredients of section 378, P.P.C. In which theft is defined are lacking in the instant case as actually the car was given by the applicant's company to the said Aftab Munawar who has also filed suit against the company which is pending adjudication, the F.I.R. Was lodged with the delay of about 1-1/2 years and lastly he observed that no prima facie case was made out and accordingly approved the summary and direct the police to take further action as per law. Thereafter proceedings under sections 182 and 211, P.P.C. Were initiated against the complainant/applicant No,2 by S.H.O. I.B. Police Station Civil Lines Larkana, which are pending adjudication before the Court of learned 1st Civil Judge and Judicial Magistrate Larkana and the applicant No,2 is facing trial before the said Court.
4. In support of his case Mr. Omar Soomro learned counsel for the applicants contended that the police has not conducted any sort of investigation in the matter, neither the complainant was called nor the witnesses to get recorded their statements and to produce the material before the Investigating Officer in order to prove that prima facie the offence was committed by the accused nominated in the F.I.R. But with intention other than bona fide, the Investigating Officer without giving any notice to the complainant, filed the report on the basis of his own opinion before S.P.
(Investigation) Larkana, who also without going through the contents of F.I.R. Even or any other martial concurred with the report filed by the Investigating Officer. The S.P. (Investigation) did not bother to consider that whether any notice was given to the complainant or he was called to assist the investigation or even before completion of investigation when the Investigating Officer concluded that the case was false and prepared the summary for approval of the same for disposal in '13' Class. The learned counsel for the applicants has further contended that even the learned Magistrate did not take pain to go through the contents of F.I.R. And through the averments of final report that whether any investigation has been conducted by the Investigating Officer to hold that the information was actually false but the learned Magistrate without applying the judicious mind and in mechanical manner has given observation beyond the scope of actual controversy and agreed with the police by giving his observations that ingredients of section so applied were lacking. The Civil Suit filed in the matter by proposed accused is pending adjudication and prima facie no case was made out and with such view he approved the summary for disposal of case in 'IV Class by order dated 5-3-2009. In complete violation of principle of natural justice as he also did not issue any show-cause notice to the complainant against whom an adverse order of cancellation his case was being passed and the proceedings under sections 182 and 211, P.P.C.
Were also being initiated against the applicant No,2/complainant. The learned counsel for the applicants in support of his contentions has relied upon the cases of Muhammad Murad v. The State 1993 PCr.LJ 1097, Muhammad Juman v. The State 2005 YLR 1785, Rana Riaz Ahmad Khan v. The State 2008 M LD 746 and Sarwar Begum v. The State 1994 PCr.LJ Note 114 at p.73.
5. The learned counsel appearing for the nominated accused/ Intervenor Aftab Munawar in reply has contended that the sections so applied by the complainant were not attracted in the instant case. At the most the matter was of civil nature for which civil suit was filed by the accused nominated in the F.I.R. Namely Aftab Munawar and that such proceedings against him were pending therefore the F.I.R. Against him was based on mala fide. However during the course of arguments he admitted the position that the car and other articles of the company are living with said Aftab Munawar and in terms of agreement he was not liable to return these articles. On a question by this Court that when the retaining of company's car and articles is being admitted before this Court, then how the complaint was false to which he was unable to reply.
6. Mr. Niamatullah Bhurgari, the learned counsel appearing for the State has conceded to this position that before conclusion of the case as false and proposed action against the applicant No,2/complainant, he was entitled to have been heard and a show-cause notice ought to have been issued to him. Such exercise has not been done, therefore, proceedings are liable to be quashed.
7. I have considered the arguments of learned counsel for the parties as well as learned counsel appearing for the State and have gone through the application/complaint of the applicant No,2/complainant in F.I.R. Crime No,175 of 2008 lodged by applicant No,2 against proposed accused/intervenor, final report filed by the Investigating Officer for approval of summary before the learned IVth. Civil Judge and Judicial Magistrate, Larkana and order dated 5-3-2009 passed by the learned Magistrate by which he fully concurred with the police and approved the summary as false and allowed the police to take intended action against the applicant No,2/complainant.
8. In the case of Muhammad Murad v. The State (supra) this Court had quashed the proceedings under sections 182 and 211, P.P.C. On one of the grounds that before proceedings with against the informant for proposed action against him, show-cause notice was necessary, while in case of Muhammad Juman v. The State (supra), this Court had set aside the judgments of conviction of two Courts below, holding that before initiation of proceedings under section 182, P.P.C. The notice or securing explanation from the informant was mandatory requirement and since such requirement was not fulfilled, therefore, the concurrent judgments of two Courts below awarding and maintaining conviction were struck down on this score alone. In cases of Rana Riaz Ahmed v.
The State and Mst. Sarwar Begum v. The State (supra), the Lahore High Court quashed the proceedings in both cases on only ground that truth or falsity of information, if not judiciously determined, the informant should have been issued show-cause notice before institution of complaint under section 182, P.P.C.
9. The complainant A.S.-I. And S.I.O. I.B. Police Station Civil Lines, Larkana, while filing the proceedings under sections 182 and 211, P.P.C. On account of alleged false information given to him, also applied section 211, P.P.C. Which has no relevancy in the instant case and same was not attracted but with mala fide the section 211, P.P.C. Was also added. Section 182, P.P.C. Deals with information given to public servant including police while section 211, P.P.C. Will apply when any criminal proceedings are instituted against a person in Court with intent to falsely charge any person, therefore section 211, P.P.C. Was totally not applicable in the instant case and taking of cognizance by the trial Court under said section also was without lawful authority.
10. For proving information led before any public servant or before the police as false, there should be a positive evidence to prove that the information so given was actually false and that no such incident or act has taken place and alleged information was made without any material, was baseless and untrue, while other ingredients of section 182, P.P.C. Are that such false information was given knowingly an believing that the same was false in order to use the lawful powers of public servant to injure or annoy any person and should falsely charge any person having committed the said offence, but in this case no such material was collected by the police and the summary was prepared only on the ground that complainant failed to appear before the Investigating Officer during investigation. This was not a ground to adjudge that information or complaint or F.I.R. Lodged by the complainant was actually false. Even it was admitted in the open Court that car of the company and other articles belonging to the company are lying with the proposed accused/intervenor and that in terms of agreement he is not liable to return the said articles for which he has filed the suit before the competent Court of law which is pending adjudication. The contentions of the learned counsel for the proposed accused/intervenor that the sections of law so applied were not applicable inthe instant case and that the matter is of civil nature and the criminal, law should not have set on motion, will not lead a conclusion that information lodged by applicant No,2/complainant was false, as the proceedings of the civil suit respect of subject-matter or application of wrong section of law or even no offence was being made out will not constitute the information as false, but on the contrary neither the police collected any material or evidence nor the learned Magistrate applied mind nor he judiciously determined that how the complaint or information of applicant No,2 was false, therefore proceedings under sections 182 and 211, P.P.C. Cannot be allowed to continue, on this score alone.
11. It is also an admitted fact that Investigating Officer during investigation did not call the applicant No,2/complainant to assist him and produce his evidence and on the basis of non-appearante of the complainant before him, he framed an opinion that compfainant/ information was false therefore he moved summary before his superior officer and before the learned Magistrate but before framing his opinion he did not bother to have issued any notice to the complainant with regard to his opinion. The issuance of notice and hearing of complainant before taking proposed action is a mandatory requirement of law.
12. Not only this but a learned Magistrate, being a Judicial Officer is expected to apply his judicious mind, did not take any pain to issue show-cause notice to complainant that as to why an order adversely affecting him, should not be passed against him but in mechanical and cursory manner agreed with the opinion of police, without consulting with the contents of the information or material collected by police that whether and actually the information was false but he had given his findings, having no relevancy with point in issue that how the complaint or information was false. His findings that the sections so applied are not applicable, that civil suit is pending and that the prima facie no case was made out had no nexus with the point actually involved in the matter.
The non-application of sections of law, filing of civil suit has no relevancy and on such basis the complaint or information cannot be held as false. Since it is an admitted position that before approval of the summary or before taking intended action, no notice was issued to informer to explain his position, and the mandatory requirement of law was fully violated in this case, therefore proceedings under sections 182 and 211, P.P.C. Against the applicant No,2 cannot sustain being abuse of process of the Court.
13. For the foregoing reasons, the above Criminal Miscellaneous Application No,138 of 2009 --was allowed by short order dated B 18-11-2009 and the proceedings in Criminal Case No,143 of 2009 Re: ' The State v. Muhammad Ashraf, pending before the Court of learned lst. Civil Judge and Judicial Magistrate Larkana were quashed.
14. The S.P. (Investigation) Larkana, should himself investigate the case in Crime No,175 of 2008 of Police Station Civil Lines Larkana, afford the opportunity to the complainant to produce his evidence and thereafter submit final report before the concerned Magistrate, who will pass appropriate order in the matter.