1. This is a Revision Application against the order passed by the A.C.M. IVth South Karachi, dismissing the application of .The applicant under section 249-A Cr.P.C. The applicant had lodged F.I.R.Na102/84 on 31-10-1984 in respect of offence under sections 380, 554 P.P.C. And section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In the first information report he had named the accused persons me including Shajar A.I Hoti son of Bagh A.I. Hoti as one of the accused. On 1-11-1984 he filed a direct complaint under Section 200 in respect of offence under sections 380, 454 read with Section 34 P.P.C. And section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 against all these accused and S.I. Tanveer Haider who was S.H.O. At Police Station, Nabi Bux, Karachi. In the complaint no specific allegation has been made against the Sub-Inspector. In para 3 it has been stated that one accused is a Government servant. This complaint was filed in the Court of District Magistrate South, Karachi; who passed the following order on it:- "Passed on to S.D.M. Garden for disposal in accordance with law."
2. On 14-1-1985 a complaint dated 5-12-1984 which has been termed by the applicant a report was presented before the A.C.M. Garden. In this complaint it was stated that on investigation it has' been found that the F.I.R. Loped on 31-3-1984 was false and prosecution of the applicant was sought under section 182 P.P.C. A notice was issued to the applicant on 14-1-1985 for appearance on 21-1-1985. On that date when the matter was called the applicant was not present, therefore, bailable warrant was issued. It seems that in the course of the day he appeared in Court and he was sent to jail as no bail could be furnished on that date. The applicant filed an application under section 249-A which was dismissed on 3-6-1985 as according to the learned A.C.M. The request was made even before the charge had been framed and no valid ground was advanced. .
3. The applicant has contended that the proceedings initiated against him is hit by section 195 Cr.P.C.
4. As he had made the report to D.I.G. On telephone verbally and on his direction he reported the matter to S.H.O, Nabi Bux. The complaint therefore, cannot be filed by the S.H.O. He has further contended that the action is mala fide and in violation of the- principles of natural justice. The applicant contended that in view of the pendency of a complaint filed by him on the same subject-matter before a Court, the prosecution under section 182 was not maintainable. As the present revision application can be disposed of on the last contention, I do not feel it necessary to examine other contentions raised by the applicant.
5. From the record it is clear that a complaint was filed by the applicant which is still pending. This complaint relates to the same incident, which was reported by him on 31-10-1984. It has to be noted that this complaint was filed only one day after lodging the report to the police. But he has explained that his apprehension was that under the influence of a sitting Minister whose stn was an accused he was not expecting justice from anywhere. Be that as it may, the factual position is that a complaint is pending which has not been disposed of. In these circumstances the prosecution of the applicant under section, 182 P.P.C. Has been challenged as illegal. The applicant has referred to Ashfaq A.I v. The State, PLD 1975 Kar:
87. In this case the applicant had lodged a report against two persons for an offence under section 307/34 P.P.C. He also produced a knife with a blade of more than 4" alleged to have been secured from one of the accused. The police registered a case under section 13-D of the Arms Ordinance against Halim one of the accused. As the applicant was not satisfied with the manner in which the police was proceeding, he filed a complaint before the Magistrate which was registered under section 324 P.P.C. During the pendency of this complaint a complaint under section 182 P.P:C. Was filed by the police against the applicant and a separate charge-sheet was also submitted against the applicant for as offence under section 13-D of the Arms Ordinance for being in possession of un-licened weapon. It was observed that since the complaint has been filed, the prosecution against the applicant, if any, was to be on the complaint of the Court under Section 211 P.P.C. And not under section 182 P.P.C. In this regard reliance was placed on Ram Chand v. Emperor 30 Cr.LJ. 339. This is a decision of Sind Judicial Commissioner's Court in which it was observed that where a false complaint to the police is followed by a false complaint to the Court, the person who has complained cannot be prosecuted except on the complaint of the Court, This observation was made following the judgment in Samir v. Sajidar Rahman AIR 1927 Calcutta 95 and Murugan v. Ghutharani Naido 104 IC 625, The applicant has also relied on Muhammad Murad Vs. The State 1983 P.Cr.LJ. 1097. In this case relying on Ashfaq A.I's case it was observed that where F.I.R. Has been lodged and a complaint is also filed which is pending the proceedings for prosecution under section 182 is not permitted and not legally maintainable.
6. It is now well settled that where a direct complaint is pending in respect of the same subject- matter which was subject-matter of an earlier F.I.R. Whirl, has been disposed of as false, the complainant cannot be prosecuted under, section 182 P.P.C. The only course open is that after the disposal of the complaint if the Court comes to the conclusion that it was false then it can direct registration of a complaint against him under section 211 P.P.C. Mr. Imam Bux Shaikh states that he does not dispute this settled legal position and that the present case is covered by it. I therefore, allow the Revision Application and Quash the proceedings initiated against the applicant under Section 182 P.P.C.
7. H. H. Q,/ M-767/K