' F.I.R. No,418, dated 3-11-1994 was registered at Police Station Jhang Bazar, Faisalabad at the instance of Maulana Saeed-ur-Rehman Anwari against Hafiz Muhammad Siddique Anwar, petitioner herein and some others under section 500, P.P.C., on the allegation that the petitioner on account of personal animus had published a false pamphlet against the complainant in August, 1994 with a view to defame him and that another pamphlet containing baseless and false allegations against the complainant was ready to be published. The police found Hafiz Muhammad Siddique Anwar and Sadiq Ali guilty of the allegations levelled by the complainant and submitted report under section 173, Cr.P.C., whereupon cognizance was taken by the Magistrate 1st Class, Faisalabad. The accused persons moved application under section 249-A, Cr.P.C. For acquittal, inter alia on the ground that the offence under section 500, P.P.C. Was non-cognizable and therefore the Magistrate had no jurisdiction to proceed in pursuance of a police challan. The learned Magistrate vide order, dated 12-9-1995 however, dismissed this application after holding that the police challan would be treated as complaint of the aggrieved person. Hafiz Muhammad Siddique Anwar and Sadiq Ali then filed revision petition which too has been dismissed by the learned Additional Sessions Judge, Faisalabad vide order, dated 30-11-1995. This quashment petition has been filed by Hafiz Muhammad Siddique Anwar to challenge the aforementioned orders passed by the learned Additional Sessions Judge and the Magistrate and for quashment of the F.I.R.
2. Mr. Shah Zeb Masood, learned counsel for the petitioner has made twofold submissions. First the offence punishable under section 500, P.P.C. Is a non-cognizable offence and there being no permission by the Magistrate to investigate the case, the very investigation and proceedings taken by the police are without jurisdiction. In this view of the matter he has contended that the challan submitted by the police under section 173, Cr.P.C. Is total nullity in the eye of law with the result that the learned Magistrate could not initiate proceedings in pursuance thereof. The second submission made by him is that by express provisions of section 198, Cr.P.C. a criminal Court can take cognizance of the offence covered by section 500, P.P.C. If the complaint is made by the aggrieved person. According to the learned counsel it necessarily means that a criminal Court can take cognizance of the offence punishable under section 500, P.P.C. If a complaint was directly made by the aggrieved person himself and not through a challan submitted by the police. In support of these submissions Mr. Shah Zeb Masood, Advocate has placed reliance on the following case-law:- -
(i) Haider and 13 others v. The State 1969 PCr.LJ 598,
(ii) Mst. Mumtaz Begum and 4 others v. The State 1968 PCr.LJ 97,
(iii) Saeed Ahmad Siddiqui v. The State 1983 PCr.LJ 1619,
(iv) Muhammad Aslam v. The State 1993 PCr.LJ 205,
(v) Hussain Baldish v. The State PLD 1963 Lah. 46,
(vi) Maijuddin Laskar and 13 others v. Maulana Nurunnabi PLD 1965 Dacca 421.
3. Mr. Masood Akhtar Shaikh, Advocate appearing on behalf of the respondent-complainant has submitted that the learned trial Court after the submission of the challan by the police had taken cognizance of the offence in that, copies of the statements recorded under section 161, Cr.P.C. Have been supplied to the petitioner and in these circumstances the report of the police submitted under section 173, Cr.P.C. Will be treated to be a complaint made by the aggrieved person. At any rate, he has submitted that taking cognizance on the police challan is a mere irregularity which does not vitiate the proceedings. He has placed reliance on the following case-law:--
(i) The Crown v. Nur Alam PLD 1955 Lah. 667,
(ii) Muhammad Aslam v. The State and another 1980 PCr.LJ 742.
4. In order to appreciate the respective contentions raised by the learned counsel for the parties the relevant provisions of law may be taken note of. The offence of defamation covered by section 500, P.P.C. Was initially non-cognizable under the provisions of Schedule II of the Cr.P.C. In 1964 this offence was made cognizable but by virtue of the provisions of Act 4 of 1986 this offence was again made non-cognizable. The admitted position, therefore, is that at the time when the alleged occurrence took place in 1994 the offence covered by section 500, P.P.C. Was not cognizable.
5. The relevant provisions which require examination are sections 4(1)(h), 190 and 198 of the Criminal Procedure Code. Section 198 of the Code enjoins that 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 of the same Code except upon a complaint made by some person aggrieved by such offence. The offence punishable under section 500, P.P.C. Is included in Chapter XXI of the P.P.C.
Section 190 prescribes the conditions and circumstances in which a Magistrate can take cognizance of an offence. The word "complaint" has been defined in section 4(1)(h) of the Code.
These provisions are reproduced below:-- "Section 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."
' Section 190. 'Cognizance of offences by Magistrates.--- (1) Except as hereinafter provided any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of High Court 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. ... "
' Section 198. 'Prosecution for breach of contract, defamation and offences against marriage.--- 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; ...."
7. The precise question involved in the present case is whether the Magistrate can take cognizance of the offence under section 500, P.P.C. On a police challan submitted under section 173, Cr.P.C. In other words, can the challan submitted by the police be treated as a complaint within the meaning of section 198 Cr.P.C.
8. This very question came up for discussion in Saeed Ahmed Siddiqui v. The State 1983 PCr.LJ 1619.
In the precedent case the allegations of defamation were first complained of before the District Magistrate who sent the case to the S.H.O. For investigation. The police registered the F.I.R. And thereafter report under section 173, Cr.P.C. Was filed in the Court of the Magistrate who in pursuance thereof summoned the accused person. Petition for quashment of the proceedings before the trial Magistrate was filed in this Court. Muhammad Munir Khan, J. Held:-- "It is now well-settled that the wprd '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."
' It was further held that in view of the provisions of section 198, Cr.P.C. The Magistrate could not have taken cognizance on the report submitted by the police. The relevant discussion is reproduced below:- . For all these reasons, I hereby hold that as far the registration of case on the complaint sent by the learned District Magistrate, registration of the F.I.R. Investigation and the submission of the challan to the Magistrate on 20th February, 1983 no 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. Farrukh Ahmed Khan, Magistrate 1st 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.
' 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, the 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 XXI, 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 jurisdiction."
In Afsar Khan etc. v. The State etc. PLD 1985 Pesh. 103 it was held that cognizance of offence under section 500, P.P.C. Can be taken only on private complaint and cognizance on police report is an illegality which is not curable under section 537, Cr.P.C. And accordingly the proceedings pending before the Magistrate were quashed. In Muhammad Aslam v. The State 1993 PCr.LJ 205 it was found that a non-cognizable offence cannot be investigated by the police without the order of a Magistrate. Taking this view it was held as follows:-- ".... That the arrest of the accused persons the investigation conducted by the police and submission of report/challan in the trial Court are wholly without jurisdiction and the proceedings initiated in routine before the Court on such investigation and police report are clearly an abuse of the process of Court."
9. The case of The Crown v. Nur Alam PLD 1955 Lah. 667 which has been relied upon by the learned counsel for respondent No,1 (complainant of the F.I.R.) is clearly distinguishable. It was an anti- Corruption case in which some of the evidence had been collected at a stage when the Investigating Officer was not duly armed with authority as required by law. It was in these peculiar circumstances that it was held that the police report fell within the purview of section 190(1)(b) or (a), Cr.P.C. It was not a case covered by section 198, Cr.P.C. Which bars the jurisdiction of a Court to take cognizance of the case on a police report under section 173, Cr.P.C. Similarly the case of Muhammad Aslam (supra) also does not deal with the effect of section 198, Cr . P . C .
10. The upshot of the whole discussion is that while a case in respect of an offence under section 500, P.P.C. May be investigated by the police on the direction of a Magistrate but the trial Magistrate cannot competently take cognizance of the offence in pursuance of the report submitted under section 173, Cr.P.C. Provisions of section 198, Cr.P.C. Specifically bar the taking of the cognizance of the offence except on a complaint made by an aggrieved person. The trial Magistrate cannot competently proceed in the matter in pursuance of the police challan. He has the jurisdiction, take cognizance of the offence punishable under section 500, P.P.C. If a complaint is directly filed before him by an aggrieved person, and not on police report. In so holding I have respectfully followed the view taken in the case of Saeed Ahmad Siddiqui (supra). The result is that the learned trial Magistrate has no jurisdiction to hold the trial on the police challan.
11. For what has been discussed above this petition is accepted. The impugned orders of the learned Magistrate and the learned Additional Sessions Judge are set aside and the proceedings pending before the learned Magistrate are quashed.