' By this petition under section 561-A, Cr. P. C. M. Afsar Khan and 12 others seek the quashment of to proceedings pending against them in the Court of lawyer Magistrate, Abbottabad, under section 182/500, P. P. C.
2. The facts leading to the filing of this petition are that Ijaz Ahmed Khan (respondent), who is a Major in the Army, submitted an application to the Superintendent of Police, Hazara, alleging that the petitioners have made a written representation against him to his Administrative superior namely, Adjutant-General Pakistan Army and also to the President of Pakistan and Governor of the Punjab levelling certain charges against him which had caused his defamation. On the aforesaid application the Superintendent of Police, Hazara, ordered the registration of a case against the petitioners. Consequently the case was registered against 18 persons including the petitioners in Police Station Cantt. Abbottabad, under section 182/500, P. P.
0. Vide F.
1. R. No, 400, dated 4-10-1980.
3. After the registration of the case the police concerned obtained an order on 13-10-1900 under section 87, Cr. P. C. From E. A. C-I, Abbottabad whereby the petitioners and others were directed to appear before him on 12-11-1980 at Abbottabad. It may be noted that all the 18 persons belong to Athar which is a remote village in Tehsil Pind Dadan Khan, District Jehlum. The petitioners feeling aggrieved moved an application under section 50-A, Cr. P. C. In this Court (Criminal Miscellaneous No, 90/80) for quashment of the proceedings against them. The grievance of the petitioners was that the proceedings under section 87, Cr. P. C. Taken against them were an abuse of the process of the Court since on the 9th day after the registration of the case the impugned order was passed by the Magistrate treating the petitioners as absconders without providing them sufficient time to appear before the concerned authority. It was alleged that no genuine attempt was made to serve the petitioners. However, vide order dated 7-2-1981 of this Court, the aforesaid petition was dismissed in limine for the reason that the case had not yet been put in Court and was being processed by the prosecution agency.
4. After the challan was submitted to the Court an application under section 249-A, Cr. P. C. Was moved by the petitioners on 4-4-1981 before the Magistrate requesting for their acquittal on the ground that the case under section 182/500; P. P. C. Had not been initiated on the written complaint of any of the Administrative superiors of the complainant. Nor any complaint was filed by the complainant himself and the Magistrate was not competent to take cognizance of the case on the police report. It was also alleged that the proceedings under section 182, P. P. C. Could not be instituted without a formal complaint in writing under section 195, Cr. P. C. And that the written representation made to the Administrative superiors of the complainant was absolutely privileged and hence no case of defamation was made out. This application under section 249-A, Cr. P. C.
Was dismissed by the Magistrate on 27-8-1981 on the ground that the questions raised by the petitioners would be considered after recording some evidence in the case.
5. The learned counsel for the petitioners raised two-fold contention. Firstly, that the Magistrate could not take cognizance of the offence under section 500, P. P. C. Except on a complaint in writing as provided by section 198, Cr. P. C. And the cognizance thus taken by the Magistrate on the basis of the First Information Report was clearly without jurisdiction. Secondly, that the written representation, allegedly containing defamatory material, having been made to the Administrative superiors of the complainant, the case would be covered by the eighth exception to section 499, Cr. P. C. Since the alleged accusation against the complainant was made in good faith to person having lawful authority over him with respect to the subject-matter of the accusation. It is also contended that the proceedings under section 182, P. P. C. Could only be initiated on a complaint in writing by the public servant concerned to whom the alleged information against the complainant was given by the petitioners. The registration of the case in so far as section 182, P. P. C. Is concerned, was absolutely illegal and on this score the proceedings against the petitioners were liable to be quashed. Regarding the offence under section 500, P. P. C. It is contended that the offence was made cognizable by Ordinance LXVIII of 1979. However, no corresponding amendment was brought about in section 198, Cr. P. C. Which requires that no Court shall take cognizance of an offence, falling in Chapter XXI of the Pakistan Penal Code, except upon a complaint made by some person aggrieved by such offence. The learned counsel urged that section 198, Cr. P. C. Was not amended intentionally, for, no ignorance of the existing laws could be imputed to the Legislature.
Thus, it is contended that the Magistrate was not competent to take cognizance of the offence on the police report submitted under section 173, Cr. P. C. The learned counsel for the petitioners relies on Saeed Ahmed Siddiqui v. The State (1), wherein it was held that :- "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 20th February, 1983, as he under the law was specifically restrained from taking cognizance and proceeding further except on a complaint."
' The learned counsel also referred to the case of Abdul Sattar v. The State (2) wherein it was held that :- "We find that section 4 (1) (h) of Cr. P. C. Excludes the report of a Police Officer from the definition of the complaint, and therefore, the challan by police could not be regarded as a complaint as envisaged under section 9 of the Censorship of Films Act, 1963 read with section 4(1)(h) of C. P. C."
Support is also sought from a judgment of the Honourable Supreme Court reported in Habibul Wahab El-Kheiri v. Ch. Saeed Ahmed (3) wherein it was observed :- "8. The result is that although the concerned Government can now prosecute any person for the defamation, inter alia, of public servants, by itself filing a written complaint through the Public Prosecutor, but by virtue of the provisions of subsection (6) of section 198-A, Cr. P. C. The right of the 'aggrieved person' under section 198, Cr. P. C. To file a private complaint is maintained intact, so that if the Government does not choose to initiate proceedings to vindicate his honour, he can himself move the relevant Court by filing a private complaint." that an offence under section 182, P. P. C. Could only be taken cognizance The learned Assistant Advocate-General did not dispute the legal' position of on a complaint in writing of the public servant concerned and in the absence of any such complaint the proceedings in the present case in regard to section 182, P. P. C. Were incompetent. However, regarding the offence under section 500, P. P. C. It is contended that the taking of the cognizance by the Magistrate on the police report would amount to an irregularity curable under section 537 read with section 529(e), Cr.P.C. And the proceedings in the case would not be vitiated. It is contended that since the Court had the jurisdiction to try the offence, it was immaterial whether
(1) 1983 P Cr. L J 1619 (2) 1980 P Cr. L J 979
(3) 1979`$ C M it 545 it has taken cognizance of the offence on a complaint in writing of the aggrieved person or on a police report submitted under section 173, Cr. P. C. However, in my opinion the objection raised by th learned counsel for the petitioners goes to the very root of th case and the proceedings could not be termed as an irregularity which would be covered by the aforesaid provisions of law. An omission to file a complaint as required under section 198, Cr. P. C. Cannot be considered as an omission, error or irregularity curabl under section 537 read with section 529(e), Cr. P. C. It is a case of complete lack of jurisdiction on the part of the Magistrate to have taken cognizance of the offence under section 500, P. P. C. No doubt th police was competent to register and investigate the case and submit it report to the Court concerned but the Magistrate was not competent to take cognizance of the case on the challan submitted by the police. Since under the law he was specifically debarred from taking cognizance and proceeding with the matter except on a complaint of the aggrieved person. A complaint under section 4(11(h), Cr. P. C. Means an allegation made; orally or in writing to a Magistrate, with a view to his taking action that c some person has committed an offence, but it does not include the report of a police officer. It is evident that the police report stands specifically excluded from the definition of complaint. Further, the provisions of section 198, Cr. P. C. Are mandatory which affect the very jurisdiction of the Court to proceed in the matter and as such its violation could not be termed as an irregularity curable under section 537, Cr. P. C.
6. Therefore, without going into the merits of the case whether, on the facts, an offence under section 500, Cr. P. C. Was made out or not, the proceedings in the case initiated on the police report are held to be illegal and without jurisdiction which amount to the abuse of the process of the Court.
7. For the aforesaid reasons by accepting the petition under section 561-A, Cr. P. C. The impugned proceedings pending in the trial Court are quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.