JUDGMENT SYED SAJJAD HASSAN SHAH, J.---Through the instant petition under section 561-A, Cr.P.C, the petitioners seek the quashment of F.I.R. No.208 dated 1-5-2010 registered at Police Station, City D.I.Khan under sections 341/188/148/149, P.P.C. Read with section 3 Loud Speaker Ordinance.
2. Briefly stated facts of the instant case are that respondent No.3 (District Coordination Officer) vide his Letter No.3353/PS dated 19-4-2010 passed under section 144, Cr.P.C, imposed ban on procession and use of loud-speaker. The petitioners allegedly violated the order passed under section 144, Cr.P.C. By taking out the procession at the eve of Labour Day consisting Qinqui Rickshaws and 125/150 people were attracted to the spot from Tank Adda which passed through different Bazars of D.I.Khan. The petitioners used loud-speaker and on different points, blocked the road for traffic. When the procession returned to Tank Adda the same was led by the petitioners. In view of the above stated facts the above mentioned case F.I.R. Was registered vide impugned F.I.R.
Against the petitioners.
3. The learned counsel for petitioners contended that the petitioners have celebrated the Labour Day and have no intention to violate the order passed under section 144, Cr.P.C. It is further contended that this day used to be celebrated throughout the world, which does not amount any violation of said law. Moreso, it has been celebrated by Labour Community by taking out the huge processions throughout the country. He further contended that this is the fundamental right of the petitioners as guaranteed by Article 20(a) of the Constitution of Islamic Republic of Pakistan, 1973.The proceedings taken under section 188, P.P.C. Are violatory to the law laid down in section 195, Cr.P.C, thus proceedings are void, ab initio and coram non judice and liable to be quashed.
4. As against that, the learned A.A.-G. Half-heartedly contested the submissions made by the petitioners and supported the recording of F.I.R. And proceedings taken thereunder.
5. I have considered the above submissions and carefully perused the record.
6. Perusal of the record reveals that the impugned F.I.R. Was registered on behalf of Zahuruddin S.H.O. Police Station, City on 1-5-2010, which was recorded due to violation of order passed under section 144, Cr.P.C. By the respondent No.3 (DCO). The entire exercise seems to be against the provisions of law contained in section 195, Cr.P.C, according to which the S.H.O. Of the concerned police station has no lawful authority to register the F.I.R. Against the persons who have indulged in violation of the proclamation made under section 144, Cr.P.C. The requirement of law is that the complaint is to be made in writing of the public servant concerned or or some other public servant to whom he is subordinate. To fortify the above mentioned proposition of law the provisions contained in section 195(1)(a), Cr.P.C. Worded thus: -- "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"
7. The above cited section of, law provides exception, to the general rule that any person having knowledge of the commission, of an offence may set the law in motion by filing a complaint, even though he is not personally interested or affected by the offence. However, here the position is different, because this section limits the power of Magistrate to take cognizance in the offences enumerated therein. The object of the section is to stop private person from obtaining sanction as a means of wreaking vengeance and to give the Court full discretion in deciding whether any prosecution is necessary or not. Thus, under the provision of section 195, Cr.P.C. Only the public authority or the concerned Court has the right to lodge complaint unless there is a complaint by such public authority or Court, as the case may be, no Criminal Court shall take cognizance of these offences. Therefore, B violation of section 144, Cr.P.C. Provided the penal action under section 188 of the P.P.C. Whereas the procedure provided for initiating 'the criminal proceedings against the violator under section 195, Cr.P.C. By filing complaint by the authority who has enforced the order or to whom he is subordinate. In view of the above restriction laid down by the law maker, no other person including S.H.O. Of B the concerned police station vested with authority to initiate the proceedings in his name.' In the instant case the District Coordination Officer or his officer to whom he is subordinate is authorized under the law to lodge the complaint and proceed with the case.
Though the offence under section 188, P.P.C. Made cognizable one, however corresponding amendment in -section 195, Cr.P.C. Has not been introduced, as such the mandate of law is to be followed in its letter and spirit which cannot be deviated from, in such situation the entire proceedings would be considered as unlawful and without jurisdiction. It is age-old; adage that act must be done in accordance with the mandate of law and not otherwise if the provisions bypassed while doing certain act which 'is made lawful, same can be declared unlawful after its violation.
Reliance placed on a case of Muhammad Shafiullah v. Govt. Of - Pakistan through Secretary Parliamentary Affairs Division, Pakistan Secretariat, Islamabad and 5 others (PLD 2002 Peshawar 50), reproduced as under:- "It is well-settled that a thing required to be done in a particular manner must be done in that manner. Or not at all and doing something Which is in conflict with that would be not only unlawful but mala fide, thereby rendering it without jurisdiction".
8. The concerned S.H.O. Has no lawful authority to lodge the criminal proceedings by registration of the impugned F.I.R. Against the petitioners. His action is apparently against the provisions ibid and being without jurisdiction void, ab initio and having no legal effect. In this regard reliance placed on Muhammad Shoaib v. Ghulam Samdani and others (PLD 1996 Peshawar 37), in view of similar circumstance on acceptance of writ petition, the proceedings in the case registered on the complaint of respondent/police officer due to the alleged violation of order passed under section 144, Cr.P.C. By the S.D.M, were quashed and the prosecution initiated on the complaint of the respondent/police officer was declared as without lawful authority and having no legal effect. The relevant portion of the judgment is reproduced for ready reference: -- "An amendment has been although made in the schedule of the Criminal Procedure Code and section 188, P.P.C. Made cognizable thereby and a police officer has now been empowered to make arrest of a person without warrant if an offence punishable thereunder has been committed in any public place, but there being no corresponding amendment in section 195, Cr.P.C. a Court despite that can take cognizance of such an offence on a complaint, in writing of the public servant concerned or of some other public servant to whom he is subordinate.
It would, therefore, follow that no prosecution of the petitioner could take place on the charge under section 188, P.P.C. For the alleged violation of an order passed under section 144, Cr.P.C. By the S.D.M, Mansehra in the absence of written complaint by the S.D.M. Himself or some other Officer to whom he is subordinate."
9. The accumulative effect of the above discussion would be that the criminal proceedings challenged in the instant petition would be considered at par with those highlighted in the above mentioned case-law, therefore, the same treatment to be given to the present proceedings.
10. In view of above discussion the instant petition is hereby accepted. Resultantly, the F.I.R. And the superstructure built upon of the impugned F.I.R. Is hereby declared without jurisdiction, void ab initio and having no effect..