MUHAMMAD TARIQ ABBASI 1:- By way of instant writ petition, the order dated 22.07.2014, passed by the learred Addl. Sessions Judge/Ex-Officio Justice of Peace, Karor District Layyah, has been called in question, whereby upon an application, moved by Hussain Bakhsh (respondent No. 3), or registration of a criminal case under Section 188 P.P.C., against the petitioner and proforma respondent, it has been held that as commission of a cognizable offence has been made out, hence the police should procee accordingly.
2. The learned counsel for the petitioner has raised a legal point that the application moved by Hussain Bakhsh (respondent No. 3), before the learned Ex-Officio Justice pf Peace was not competent being ,contrary to the mandatd-y provision of section 195, Cr.P.0 as cognizance of offence under Section 188 P.P.C., can only be taken, on a complaint in writing made by the public servant concerned or some other public servant to whom he is subordinate.
3. The learned Law Officer when confronted with said legal proposition, could not refute the arguments of the learned counsel for the petitioner.
4. I have considered the arguments of the learned counsel for the parties and perused the record.
5. Under section 195 Cr.P.C., for proceedings under Section 188 P.P.C., cognizance can only be taken if complaint in writing is made by the public servant, whose order is violated or some other public servant to whom he is subordinate. The said provision reads as under:-
195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against publie justice: 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.
(b) of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or
(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
6. The above mentioned provision of law is mandatory in nature. Even a Plain reading of the provision would indicate that it starts with negative word as well as using the word "shall". It is a settled principle that any section commencing with negative terminology is always mandatory. It is also crystal clear from the above provision that no court shall take cognizance of any offence punishable under section 172 to 188 PPC except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. The pronoun "he" is relatable to the public servant concerned. Reliance in this regErd may be made to the cases of "Bahadur Versus Mudhai (PLD 1963 (WP) Lahore 269), Nizamuddin Samejo and others Versus Sub- Divisional Magistrate and others (1988 P. 988) and Abdul Baqi and 3 others Versus The State (1998 P Cr,L.J 87). Relevant portion of the case of Bahadur (Supra) reads as under:- "The complaint filed under section 188 P. P. Code is also not maintainable. Mudai respondent filed the complaint under section 188, P. P. Code against Bahadur and others in the Court of Mr. Muhammad Aziz-ud-Din, Magistrate 1st Class, whose order they had disobeyed, and the learned Magistrate, without taking the troub'e of looking into the Code of Criminal Procedure, summoned Bahadur and his co-accused and decided to proceed against them. Had the learned Magistrate locked up section 195 of the Code of Criminal Procedure, he would have realized that a complaint under section 188, P. P. Code by Mudai respondent was not competent."
7. In the matter in hand, if any order has been passed by any revenue officer and the said order has been violated then only the concerned revenue officer or some one superior to him should make a complaint in writing to the concerted police and upon such complaint the police is competent to take due proceedings. It is a settled legel position that when a thing is required to be done by law in a particular manner, it shall be done in the manner demanded by the law or no.: at all. Reference in this regard may be made to the case "Raja Hamayun Safraz Khan and others Versus Noor Muhammad" (2007 SCM R 307)
8. Admittedly, Hussain Bakhsh (respondent No. 3) who has filed the application under Section 22-A Cr.P.C. for registration of case under Section 188 P.P.C., against the petitioner and the proforma respondent is not a public servant and even no order of him has been violated, hence he is nobody to m 3ke the above mentioned request. Consequently upon his application no action should have been taken by the learned Ex-Officio Justice of Peace.
9. The upshot of the above discussion would be that as the application under section' 22-A Cr.P.0 was filed by a per;on not authorized by law, hence no proceeding could be initiated in such invalid application. Therefore, the impugned order dated 22.07.2014, passed by the learned Addl. Sessions of law could not be termed justified. Resultantly, this writ petition is accepted and above said impugned order is ;et- aside. However, it is made clear that if regarding the matter in issue any public servant has made any order and it has been violated by anyone then the said official or anyone superior to him may make a complaint to the police and in the ;aid eventuality the !police will be duty bound to proceec in accordance with law.