This reference by the Sessions Judge, Derajat Division, D. I. Khan, arises under the following circumstances:- A dispute having arisen between the parties in regard to a piece of land which was likely to end up in the breach of peace, the local police instituted proceedings in the Court of the Ilaqa Magistrate under section 145, Cr. P. C. On 26-1-1969. On 2-5-1969, Mr. Fida Muhammad Khan Magistrate issued notice to the parties directing them to appear before him on a specified date, file their respective written statements and in the mean--time not to go near the disputed land until further orders. It thus happened that the case in question was transferred from the Court of Mr. Fida Muhammad Khan to various other Courts and lastly to the Court of A. C. Tank. On 21-12-1970 Mir Alam Khan made an application to the Assistant Commissioner that the opposite-party had contravened the order of Mr. Fida Muhammad Khan dated 25-1969, and in order to punish him a complaint should ~e filed against them tinder section 188, P. P. C. The respondents were accordingly summoned by the learned Assistant Commissioner, Tank who resisted the said application and the sac was ultimately dis--missed on 3-5-1971. Being aggrieved of his order Mir Alam Khan and others went in revision to the court of the learned Sessions Judge, who as a result has made t4 above reference to this Court.
2. From the order of the learned Sessions Judge it traps Aires that the learned Assistant Commissioner. Tank had declined to file a complaint against the opposite-party under section 188, P. P. C. Because in his view the only person who could file such a complaint would be Mr. Fida Muhammad Khan whose order dated 2-5-1969 was alleged to have been contravened by the opposite-party. In support of his opinion the learned Magis--trate has relied upon a case of this Court reported in Muhammad Hussain v. The State (PLD 1967 Pesh. 307) in which the view taken was that in the event of an allegation that an offence under section 188, P. P. C. Had been committed, the only officer who would be authorised to file complaint against the accused would be the one whose order had been contravened.
This opinion does not seem to have been appealed to the learned Sessions Judge. And by relying upon a case in Behari Lal v. Sheikh Abdul Qadir Hamyari (AIR 1940 Lah. 292), he reached the conclusion that the learned Assistant Commissioner had fallen in error by refusing to make the required complaint against the opposite-party under section 188, P. P. C. In support of this finding the learned Sessions Judge also sought support from the case reported in PLD 1967 Pesh. 307 and held that the Assistant Commissioner being the successor-in-office of Mr. Fida Muhammad Khan.
Magistrate, spas the proper person to make a complaint against the accused and that the contrary finding given by him was not supported by the said judgment.
3. In order to appreciate the conclusion of the learned Sessions Judge it would be proper to reproduce the pro--visions of sections 195, Cr. P. C. Under which the filing of a complaint is envisaged in a case of the present nature. The section reads:- 195.-(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 writ--ing 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.
(2) In clauses (b) and (c) of subsection (1), the term 'Court' includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Regis--tration Act, 1877.
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose juris--diction such civil Court is situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate, to the civil or Revenue Court according to the nature of the case or proceed--ing in connection with which the offence is alleged to have been committed.
(4) The provisions of subsection (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint, and if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint."
4. The admitted position in this case which has been already noted is that Mir Alam Khan petitioner had filed an application before the Assistant Commissioner that the opposite- party had contravened the order of Mr. Fida Muhammad Khan, Magistrate dated 2-5-1969, thereby making themselves liable for action under section 188, P. P. C., and therefore complaint should be filed against them under that section. Now the proper provision which appears to be attracted to these facts would be the one contained in sub-clause (a) of subsection (1) of section 195, Cr. P. C. Which direct that in regard to offences punishable under sections 172 to 188, P. P. C. No Court shall be authorised to take cognizance except on the complaint in writing of the public servant concerned or some other public servant to whom he is subordinate. The expression "public servant concerned" used in this sub-clause bears special significance, when notice is taken of the language used in sub-clauses (b) and (c) of subsection (1) of section 195, Cr. P. C. By which the Courts are debarred from taking cognizance of any offences under sections 193 to 196, 199, 200, 205 to 211 and 228, 463, 471, 475 and 476, P. P. C., unless written complaint to that effect has been made by the Court which is seized of the matter, or of some other Court to which such Court is subordinate. In other words since the Legislature has used two distinct ex--pressions in sub-clause (a) and sub-clauses (b) and (c) of subsec--tion (1) of section 195, Cr. P. C., it is clear to me, keeping in view the accepted norms of interpretation that the language used by the Legislature must be understood in its ordinary connotation, that in regard to offences mentioned in sub-clause (a) the written complaint will have to be made by the Presiding officer whose order is alleged to have been contravened, whereas in regard to offences under sub-clauses (b) and (c) of subsection (1) of section 195, Cr. P.
C. The complaint in question would be filed by the Court, regardless of the fact as to who was the officer whose order was allegedly contravened. This conclusion also finds support from the language of subsection (5) of sec--tion 195, Cr. P. C., by which the next public servant, to whom the "public servant concerned" is subordinate, has been empower--ed to order the withdrawal of any complaint filed by the latter, whereas no such power has been given to any authority in regard to the complaint filed by the Court for offences under sub clauses (b) and (c) of subsection (1) of that section. It was in this context that section 195, Cr. P. C. Was construed in the like manner in the above judgment of this Court for in that case also the offence which the accused was alleged to have committed was under section 188, P. P. C. To which sub-clause (a) of subsection (1) of section 195, Cr. P. C. Was clearly attracted. It is therefore clear that the learned Assistant Commis--sioner had correctly understood the ratio of the said judgment and the contrary conclusion of the learned Sessions Judge is unsustainable.
The judgment reported in AIR 1940 Lah. 292 was also incorrectly understood by the learned Sessions Judge. The facts in that case were that during the course of litigation in the Court of the Subordinate Judge the original written statement filed by the defendant was replaced by another written state--ment and this according to the plaintiff amounted to forgery and fabrication of evidence. Apart from being accused of having committed offences under sections 465 and 466, P.
P. C., the Presiding Officer of that Court was also accused of having abetted an offence under section 193, P. P. C. It was in this background that their Lordships of the Division Bench came to the following conclusion:- "If a case or proceeding has been before various Courts and an offence is alleged to have been committed in that proceeding or case falling under the various sections prescribed in section 195, Cr. P. C., then all the Courts have jurisdiction to make the complaint though, normally speaking, the proper Court to make the complaint is the Court which finally tried and determined the suit. Hence, where an offence is committed in `the course of a suit before a Court and that suit is subsequently transferred to another Court the latter Court is competent to make a com--plaint under section 195."
It would be seen that unlike the present case in which no offence was alleged to have been committed by the accused during the proceedings of the case, the accusation in that case was that while the suit was pending in Court the offence of forgery had been committed by the accused and the Presiding Officer. In this view the case was clearly covered by sub---clause (c) of subsection (1) of section 195, Cr. P. C. In which the offence of forgery under section 463, P. P. C. Is clearly mentioned and upon the proof of which the accused is liable to punishment under sections 465 and 466, P. P. C. The judgment in question was therefore clearly distinguishable and had no application to the facts of this case.
The result of this discussion therefore is that since the offence complained of in this case was under section 188, P. P. C., the proper officer who could have filed written complaint against the accused would be Mr. Fida Muhammad Khan, Magistrate whose order was allegedly contravened or some other public servant to whom he was subordinate. However since no I such complaint had been filed by Mr. Fida Muhammad Khan or the officer to whom he was subordinate, the learned Assis--tant Commissioner Tank was clearly right to hold that he had no jurisdiction to file the required complaint under sub---clause (a) to subsection (1) of section 195, Cr. P. C. The contrary conclusion of the learned Sessions Judge was therefore illegal and consequently the reference made by him to this Court is hereby dismissed.