This is a petition under section 561-A, Cr. P. C. For the quashment of proceedings under section 500, P. P. C. Against Saeed Ahmad Siddiqui petitioner pending before Mr. Farrukh Ahmad, Magistrate Ist Class, Multan.
2. The facts giving rise to this petition are that on 24th November, 1982 following news item with regard to the death of a child was published in the daily Imroze of Multan Edition.
3. Feeling aggrieved by this news item, Syed Ziaul Hassan, Chief Engineer, Multan Development Authority and It.-Col. (Retd.) Muhammad Yaqub Malik, Director Administration, Multan Development Authority, Multan for and on behalf of Multan Development Authority, Multan, filed a complaint under section 500, P. P. C. Before the learned District Magistrate, Multan on 8th December, 1982. It war stated therein that Saeed Ahmad Siddiqui petitioner was Staff Reporter of daily `IMROZE' and-that the news item got published by the Staff Reporter was false and malicious and was deliberately designed with mala fide intent to defame the Multan Development Authority and the officials thereof in the public eye. It was prayed therein that the respondent may be punished as provided under the law.
4. On 15th February, 1982 the learned District Magistrate passed the following order ---Taking cognizance under section 190, Cr. P. C. The S. H. O. Cantt. To investigate the case under section 156, Cr. P. C.--- An objection was raised to the effect by the S. H. O. Police Station Cantt. That the office of daily `IMROZE' falls within the limits of police station Haram Gate. Instead of investigation under section 156, Cr. P. C. And sending report thereof to the learned District Magistrate, the police, under section 154, Cr. P. C. Registered F. I. R. No. 646/82 at Police Station, Haram Gate for an offence under section 500, P. P. C. On the same date at 4-30 p. m. Against the petitioner and 2 others. The police arrested the petitioner and produced him under custody before the Magistrate, who remanded him to judicial custody and thereafter allowed him bail under section 497, Cr. P. C. After the investigation, the police straightaway sub--mitted challan i.e. Report under section 173, Cr. P. C. Under section 500, P. P. C. Against the petitioner on 20th February, 1983, in the Court of Mr. Farrukh Ahmad Khan, Magistrate Ist Class, who, passed the following order thereon
5. Earlier, the petitioner had moved a petition for quashment i.e. Cr. M. No. 21-0/83. Since the petitioner had not approached the trial Court under section 249, Cr. P. C., I refused to entertain that petition and observed that the petitioner may move the trial Court under section 249-A, Cr. P. C. If so advised. Thereafter, an application under section 249-A, Cr. P. C. Was filed by the petitioner, the same was dismissed by the learned Magistrate on 12th February, 1983. Hence this petition.
6.The learned counsel for the petitioner has contended that ; (1)Since the offence under section 500, P. P. C. Falls in Chapter XXI, P. P. C., therefore, Mr. Farrukh Ahmad Khan, the learned Magistrate 1st Class was not competent to take cognizance on police report under section 173, Cr. P. C. And as such the proceedings against the petitioner amount to an abuse of the process of the Court, the proceedings against the petitioner are mala fide.
As against this, Mr. Tassaddaq Hussain Jilani, the learned Assistant Advocate-General assisted by Mr. Khalid Farooq Qureshi, the learned counsel for the complainant has vehemently, supported the proceedings before the learned Magistrate under section 500, P. P. C. Against the petitioner.He raised the following points
(i) that the petition under section 561-A, Cr. P. C. Is not maintain-- able as the petitioner should have approached the Sessions Court in its revisional jurisdiction against the impugned order passed by the learned trial Court on the application under section 249-A, Cr. P. C. Moved by the petitioner.
(ii) that the District Magistrate passed the order after taking cognizance (within the meanings of section 198, Cr. P. C.) on a complaint filed by Chief Engineer and Director, Administration, Multan Development Authority, Multan, and the District Magistrate was well within his jurisdiction to send the complaint to police for investigation and if the complaint disclosed the commission of a cognizable offence, the police was competent to register a case and submit challan before the Illaqa Magistrate, For this he relied on cases Abdul Haleem v. Qurban Hassan and others (PLD 1965 Lab. 570) and Muhammad Latif. v. A. J. K. Government (PLD 1965 Azad J K 40).
(iii) that the offence under section 500, P. P. C. Was made cognizable vide Ordinance LXVIII of 1979.
However, corresponding change could not be brought about in section 198, Cr. P. C. The intention of the Legislature was made clear through amendment in section 499, P. P. C. In case a plain meaning is given to section 198, Cr. P. C., the effect of the amendment, made vide the amend--ing Ordinance LXVIII of 1979, would be nullified and it would lead to absurd situation which could not be the intention of the Legislature. To support this point, he relied on Mehr Khan v. Yaqub Khan and others (1981 SCMR 267).
(iv)that even if the procedure adopted for the trial of the petitioner is found to be irregular, the same is curable under section 537, Cr. P. C. He relied on PLD 1956 SC 178.
In the interest of justice, I have also heard the learned counsel for the complainant, Mr. Khalid Farooq Qureshi, who added (i)that through Criminal Law (Amendment) Ordinance, 1979, i.e. Ordinance IXVIII of 1979, amendment of the second schedule in the Code of Criminal Procedure was made, whereby, offence under section 500, P. P. C. (if the imputation is published in the manner referred to in the proviso of section 499, P. P. C'.) has been declared cognizable one and as such, the provisions of section 198, Cr. P. C. Which prohibit the Courts from taking cognizance of offence under section 500, P. P. C. Except on a com--plaint by an aggrieved person, stands repealed by implication.
(ii) that the word "complaint." used in section 198, Cr. P. C. Should be given different meanings from one given in section 4 (1) (h), Cr. P. C.
7. For the proper appreciation of the legal aspects of the case and the points raised by the learned counsel for the parties, it may be convenient to mention here that from the statement of facts detailed in paras Nos. 2, 3 and 4 of this judgment, it is very much obvious that Mr. Farrukh Ahmad Khan, the learned Magistrate has virtually taken cognizance of the charge udder section 500, P. P.
C. Against the petitioner on a challan i.e. The police report and not on any complaint.
8. Coming to the legal aspect of the case, the relevant provisions of law may be quoted with advantage.
S. 198---"No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence."
S. 4 (1)-(h)----"complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer."
S. 190---------Except as hereinafter provided, any District Magistrate or Sub. Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence."
(a) upon receiving a complaint of facts which constitute such offence (b)upon a report in writing of such facts made by any police officer ; (c)upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed---.
S. 192-(1) "Any District Magistrate or Sub-Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him".
S. 156-(3)"Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
S. 200-(3) ---a Magistrate taking cognizance of an offence on complaint shall at once examine the complaint upon oath, and the sub--stance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate."
S. 202-"Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191, or section 192, may, if it, thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a Police Officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint."
8-A. After having considered the arguments advanced by the learned counsel for the parties in the light of the facts and the relevant provisions A of law, I am inclined to hold that under the law, Mr. Farrukh Ahmad Khan, Magistrate Ist Class; the trial Court was not, competent to take cognizance of case in respect of offence under section 500, P. P. C. On the, challan submitted before him on 20th February, 1982 and a9 such the pro--ceedings are not only without jurisdiction but also amount to an abuse of the process of Court on the short ground that the learned Magistrate could not take cognizance on the challan as it is well recognized that a challan i.e. Report under section 173, Cr. P.
C. Is not a complaint within the meanings of section 198, read with section (4) (1) (h), Cr. P. C.
Astonishingly, although the learned Magistrate is specifically prohibited from taking cognizance of the case with respect to an offence under sec--tion 500, P. P. C. Except on a complaint by an aggrieved person yet he has taken cognizance on the challan.
9. As far the points raised by the learned Assistant Advocate General, I have not been able to persuade myself to agree with him. As far the challenge to the maintainability of this petition under section 561-A, Cr. P. C. That the petitioner should have invoked the revisional jurisdiction of the learned Sessions Judge against the order of Magistrate passed under section 249-A, Cr. P. C. This, appears to be without substance inasmuch as nothing in the Code of Criminal Procedure shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to prevent the abuse of any Court or otherwise to secure the ends of justice. Needless to mention that the law does not require the petitioner to invoke the revisional jurisdiction of the learned Sessions Judge before coming to this Court for quashment of proceedings under section 561-A, Cr. P. C.
So far as the point at No. 2 that the learned District Magistrate passed the order after taking cognizance under section 1.98, Cr. P. C. On the complaint filed by 2 officers/officials of M. D. A. And as such he was competent to send the complaint to police for investigation and that since the complaint did disclose the commission of a cognizable offence, there--fore, the police was empowered to register F. I. R. Investigate and submit the challan before Mr. Farrukh Ahmad Khan, Illaqa Magistrate, are concerned, the learned District Magistrate was undoubtedly empowered to take cognizance of the complaint presented before him and under section 156 (3), Cr. P. C., he could also send the same Co S. H. O. P. S. Cantt. For investigation but what has happened in the case in hand is that (as stated in the order, the District Magistrate after taking cognizance of the com--plaint sent it to the police for investigation under section 156; Cr. P. C. To my mind, the learned District Magistrate having taken cognizance. Should not have and, in fact, could not refer the complaint to Police for investigation under section 156, Cr. -P. C. He should have either proceed--ed in the manner laid down in Chapter XVI of Cr. P. C. Or without having taken cognizance, should have sent the, complaint to police under section 156, Cr. P. C. For investigation and report to him: Strangely enough that neither the original complaint nor, any report thereon was sent by S. H. O. Cantt or S. H. O. Haram Gate to the District Magistrate to enable him to proceed further and as such no complaint is before the District Magistrate for the present. The learned District Magistrate has also not taken any further action in the matter. In any case, the complaint having not been 'transferred by the learned District Magistrate under section 192 Cr. P. C. Or by any other Court of competent juris--diction to the Court of Mr. Farrukh Ahmad Khan, he, therefore, cannot, even now, take cognizance on the complaint originally filed before, the District Magistrate who per his own showing has ready taken cognizance of the same. As far the plea that the police was competent to register case on the complaint sent to it by the District Magistrate, I am inclined to accept this plea inasmuch as the police have its independent powers to register case on receiving information of the commission of a cognizable offence from any source. Resultantly, the police could investigate and submit the challan before the Illaqa Magistrate. I am fully convinced that on the receipt of the complaint sent to it by the learned District Magistrate under section 156, Cr. P. C., the power of the police to register case on the basis of the complaint was not ousted.
Furthermore, the police may register case in respect of cognizable offence, investigate it and submit its report under section 173, Cr. P. C. Irrespective of the pendency of com--plaint with regard to same offence before any Magistrate. I, however, would like to make clear that in the instant case, the real controversy is not to the authority of the learned District Magistrate to send the com-- plaint to the police for investigation or to the power of the police to re--gister, investigate and challan the case. Before me, it is only the action of Magistrate, (whereby, the took cognizance of the case under sec--tion 500, P. P. C. Against the petitioner) that is under serious attack no the grounds of want of jurisdiction. For all these reasons, I, hereby, hold that as far the registration of case on the complaint sent by the learned Dis--trict Magistrate, registration of the F. I. R. Investigation and the sub--mission of the challan to the Magistrate on 20th February, 1983, on exception can be taken. Be that as it may, the fact remains that, as long as section 198, Cr. P. C. Is there, the Magistrate cannot take the cognizance and proceed further on such challan. In short, although the police was competent to register, case on the complaint sent to it by the learned District Magistrate, investigate the case and submit its report, nevertheless, Mr, Furrukh Ahmad Khan, Magistrate Ist Class, could not take cognizance of the case on the challan submitted before him on 20 February, 1983, as, he, under the law was specifically restrained from taking cognizance and proceeding further except on a complaint.
So far as his contention at- No. 3 is concerned, I shall deal with it while discussing the point No. 1 raised by the learned counsel for the complainant. As far the last contention, this also appears to be devoid of force. The language of section 198, Cr. P. C. That no Court shall take cognizance except on a complaint indicates that these are mandatory provisions affecting the very jurisdiction and the authority of the Court to proceed in the matter and as such its violation would be an illegality not curable by section 537, Cr. P. C. The case-law relied on by the learned Assistant Advocate- General is quite distinguishable. It is now well settled that no Court can take cognizance of offence under section 500, P. P. C. Except on a complaint by aggrieved person filed before it, therefore, theta failure to file complaint is not an omission, irregularity or error which can be cured by section 537, Cr. P. C. The wording of section makes it crystal clear that the Court cannot take cognizance of a case falling under Chapter XX1, P. P. C. Until and unless there is a complaint before it made by a specified person. If no complaint is made to the Magistrate, no jurisdiction is conferred on him to take cognizance of offence under particular section. It is, therefore, a case of complete absence of juris--diction.
10. Adverting to paint No. 3 raised by the learned Assistant Advo--cate General and point at No. 1 of the learned counsel for the complain--ant, it is well known that Court will not recognize repeal of law by implication unless the intention of the Legislature to repeal it, is clearly apparent and that too, free from all doubts there may be cases of repeal by implication but as far the case in hand, since section 198, Cr: P. C. Appears to be an exception to the general rules of taking cogniz--ance or to the general rule that anyone can push the law in motion and has a wisdom behind it, furthermore, it has to be assumed that the legislature enacts laws with a complete knowledge of all existing laws pertain--ing to the same subject therefore, to me, omission to add corresponding repeal clause, to amend or delete section198, Cr. P. C. Would indicate that at the time of enactment of Ordinance LXVIII of 1979 amending sections, 499 and 500, P. P. C. And the second schedule of Cr.
P. C. The intention of I the Legislature was not to repeal section 198, Cr. P. C. For all these, reasons, these points do not carry any weight. I am fully conscious that section 198 Cr. P. C. May frustrate proceedings in pursuance to the challan in case with respect to offence under section 500, P. P. C.
But sitting as a Court of law, I am bound to administer law as it is, regard--less of consequences.
As far point No. 2 raised by the learned counsel for the complainant that the word "complaint" used in section 198, Cr. P. C. Should be given general or different meaning from the definition of "complaint" under section 4 (1) (h), Cr. P. C. I am afraid, the submission is without force because it is now well-settled that the word "complaint" used in section 198, Cr. P. C. Should not have a different meaning from one given in section 4 (1) (h), Cr. P. C.
11. For what has been stated above, I am constrained to hold that the learned Magistrate has no jurisdiction to take cognizance of case under section 500, P. P. C. Against the petitioner, on the challan submitted before him by the police. I, therefore, going into the merits of the case accept the petition on the legal ground of "lack of jurisdiction" of the Magistrate and hereby, quash the proceedings against the petitioner declaring the same as an abuse of the process of Court.
12. Before parting with the judgment I would like to add that des--pite amendment in sections 499 and 500, P. P. C. And second schedule of Cr. P. C., through Ordinance LXVIII of 1979, offence under section 500, P. P. C. Remains to be bailable because no change has been made in the relevant column of the second schedule which indicates whether an offence punishable under section 500.
P. P. C. Is bailable or non-bailable. Although the offence under section 500, P. P. C. Was bailable one yet Muhammad Bakhsh, S. I., the Investigating Officer, not only arrested, detained and produced theth petitioner under custody before the Magistrate but also applied for his remand to judicial custody.
Mr. Farrukh Ahmad Khan, Magistrate also remanded the petitioner to judicial custody and confined him in jail. I summoned the S. H. O. And the Magistrate in order to give them opportunity to explain their actions. The Magistrate appeared before me but could not justify his order, whereby, he sent petitioner to jail. The S. H. O. Has informed that Muhammad Bakhsh, the Investigating Officer is no more in police service. The learned Assis--tant Advocate-General has frankly and very rightly stated that offence under section 500, P. P. C. Is bailable one. The actions of Magistrate and the Investigating Officer, therefore, prima facie, amount to wrongful detention of the petitioner punishable under section 342, P. P. C. Further, they have extremely misused their powers. The petitioner may prosecute. Mr. Farrukh Ahmad Khan, Magistrate and Muhammad Bakhsh, Sub--- Inspector Police, etc. If so advised.