Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks for quashment of proceedings being conducted by a learned judicial magistrate at Rawalpindi, in a complaint/qalandra under Section 182, PPC, submitted by the respondent-SHO against the petitioner, in consequence of cancellation of case-FIR No, 379 of 2010, dated 11.04.2010 under Section 379, PPC, registered at Police Station Civil Lines (Rawalpindi), on the complaint of the petitioner.
2. The only point for consideration is whether the respondent SHO was competent to furnish a complaint against the petitioner for a penal action under Section 182 of the, PPC. It has been underlined by Section 195 of the Cr.P.C. that no Court can take cognizance of an offence under Section 182, PPC except on a complaint in writing of the public servant concerned or that of some other public servant to whom he is subordinate. The public servant concerned includes the person or authority to whom a false information is furnished by someone knowingly, believing it to be false with intent to cause said public servant to use his lawful power/authority to the injury of another person. Reproduction of the definition of Section 182, PPC and illustrations attached thereto, would be advantageous:-- "182. False information with intent to cause public servant to use his lawful power to the injury of another person, Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant :--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to [three thousand rupees]64, or with both. Illustrations (a)A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.
(b)A falsely informs a public servant that Z has contraband salt in a secret place, knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of premises, attended with annoyance to Z. A has committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assailants, but knows it to be likely that in consequence of their information the police will make enquiries and institute searches in the village to the annoyance of the villagers or some of them. A has committed an offence under this section.
3. It has been strongly argued by learned counsel for the petitioner that the complaint filed by the respondent-SHO under Section 182, PPC was not competent being contrary to the mandatory provisions of Section 195, Cr.P.C. It was urged that the complaint was made by the CPO/SSP, therefore, it was he alone or another officer/public servant to Whom he was subordinate, who could legally file a complaint against the petitioner under Section 182, PPC.
A. For proper appreciation of the controversy, the relevant portion of Section 195, Cr.P.C. is reproduced hereunder:-- "195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public iustice: Prosecution for certain offences relating to documents given in evidence.--(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".
It is abundantly clear from the above provision of law that any offence punishable under Sections 172 to 188, PPC could only be taken cognizance of when complaint was tendered in writing by the public servant concerned or by some other public servant to whom he was subordinate. The SHO was not the person/public servant concerned to whom a complaint had been filed by the petitioner. Even otherwise the FIR case got lodged by the petitioner had not been decided on the judicial side rather a cancellation report prepared by the -respondent SHO under Section 173, Cr.P.C. on finalization of investigation, had been dealt with by the learned area magistrate in the capacity of a persona designate.. The veracity of information laid down by the petitioner should have been judicially determined before he was called upon to answer the charge of giving false information. Reliance in this regard may be placed on the cases, titled "Sarwar Begum Vs. The State" (1974 PCr.LJ. Note 114 at p.73) and "Mian Fazal Ahmad Vs. The State" (PLD 1970 Lah. 726). In this background, the continuation of the proceedings under Section 182; PPC before the learned judicial magistrate Rawalpindi is a certain tantamount to abuse of process of law. In the present case, admittedly the application was submitted by the petitioner before the CPO Rawalpindi which led to registration of case FIR No, 379/10 (supra) and on investigation the same was found false.
Therefore, the only competent authority or the public servant was the CPO Rawalpindi to make a complaint before the learned area magistrate for penal action against the petitioner under Section 182 of the, PPC, which was not so done by him and in his place, the respondent-SHO presented a complaint/qalandra in question which, as stated above, is pending adjudication before above said judicial magistrate. The correctness of the legal proposition, discussed hereinabove, has not been disputed by the learned Additional Advocate General Punjab and he has self-assuredly submitted that the proceedings against the petitioner, pending before the Court of learned magistrate were patently illegal.
6. In this view of the matter, the instant petition is accepted, the impugned qalandra/complaint under Section 182 of the, PPC and ongoing proceedings thereunder before the Court of learned judicial magistrate Rawalpindi are quashed.