' A section of "Ahel-e-Tashee" at Mansehra under a license obtained from the Local Administration on the 10th day of Muharram, i,e, 21st of June, 1994 took a procession on their conventional route.
The procession during its progress in the opinion of S.H.O., Police Station (City), Mansehra Mr. Habibullah Khan not only crossed the limits of the conventional route but also caused damage to a Petrol Pump and some vehicles parked therein by resorting to stone pelting. The S.H.O. On this was obliged to register a case at his own report under sections 427, 341, 188, 148, 149, P.P.C. Mr. Habibullah Khan after that himself investigated the case and on the completion of investigation challenged the accused persons, i,e,, the petitioners herein, for prosecution before the Court of a Magistrate at Mansoura. In this context this Court has now been asked to take cognizance of the matter in its inherent jurisdiction on an application moved by the petitioners for the abashment of all those proceedings before the criminal Court being abuse of the process of the Court.
2. I have heard Mr. Abdullah Jan Mirza, Advocate on behalf of the petitioners and Mr. Tahir Hussain Lughmani the Assistant Advocate-General. Admittedly an order under section 144, Cr.P.C. Had been issued during the period when this incident took place and according to the S.H.O., (City), Mansehra the procession had been taken out in violation of that order. I fail to understand as how this position would be sustainable when I see a license obtained by the petitioners from the Local Administration that they could take their "Ashura" procession on the 10th day of Muharram, 1994 on the conventional route up to certain limits which they did. This would be besides this accepted legal position that if an order passed under section 144, Cr.P.C. Has been violated, no Court shall take cognizance of any case punishable under section 188, P.P.C. Except on the complaint in writing of that Public Servant who happened to be author of such an order or of some other Public Servant to whom he is subordinate as section 195(1)(a) lays down the text whereof is reproduced below:-- "195. Prosecution for contempt of lawful authority of public servants.--- (1) No Court shall take cognizance--- 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:"
3. In the instant case proceedings under section 188, P.P.C. Have been initiated before the Magistrate by the same Police Officer who had initially lodged the report. As section 195(1)(a), Cr.P.C. Requires of a Court to take cognizance of the offence only on a complaint in writing of the public servant concerned who promulgated an order under section 144, Cr.P.C. All such proceedings conducted before the Magistrate Court were thus invalid and could be quashed by the High Court while exercising jurisdiction under section 561-A, Cr.P.C. An amendment has been although made in the Schedule of the Criminal Procedure Code and section 188, Cr.P.C. Made cognizable thereby and a Police Officer after the aforesaid amendment in the Schedule has now been empowered to make arrest of a person without warrant if an offence punishable thereunder has been committed in any public place, but there being no corresponding amendment in section 195, Cr.P.C. a Court despite that could only take cognizance of such an offence on a complaint in writing of the public servant concerned or of some other public servant to .Whom he is subordinate. We have enough of precedent law on this score and I would refer few cases cited at the Bar; Sharif and 4 others-Petitioners v. The State---respondent PLD 1975 Lah. 1315 and Ali Hussain-Applicant v. The State---Respondent 1979 PCr.LJ 941. The learned A.A.-G. Has candidly conceded to this position. It would be, therefore, held that no prosecution of the petitioners could take place on a charge under section 188, P.P.C. For the alleged violation of an order passed under section 144, Cr.P.C. By the District Magistrate, Mansoura in the absence of a written complaint by the District Magistrate himself or of some other officer to whom he is subordinate.
4. The complainant Police Officer has also added sections 341 and 427, P.P.C. To his report. Section 341, P.P.C. Provides for punishment for wrongfully restraining any person. Neither any such accusation has been made in the report by the S.H.O. Nor any person has come forward during investigation of the case before him with a charge on his wrongful restraint. Similarly, neither owner of the Petrol Pump nor of any vehicle allegedly damaged came forward with a like accusation against the petitioners or any person from the procession.
5. The awful aspect of the matter is that the same Police Officer who happened to be a complainant in this case himself investigated it later on and put challah of the case in Court before the Ilaqa Magistrate not knowing, that in the triple position under which he undertook all this exercise against the petitioners how could he be able to justify his actions if adjudged on bona fides. This anxiety and unchaste haste shown on the part of the Station House Officer in a case like this must be deprecated and the matter in the interest of service discipline may be brought to the notice of the Inspector-General Police of the Province.
6. In the background of the case in which this petition has arisen, I see that this is a fit case where the High Court should make indulgence by exercising jurisdiction under section 561-A, Cr.P.C.
Despite an argument, that the petitioners did not take any recourse for redress in the case under section 249-A, Cr.P.C. Before the Magistrate Court. Consequently, I accept this petition and quash the proceedings initiated in the case before the Magistrate being abuse of the process of the Court.