' The petitioner by way of this Constitutional petition seeks quashment of proceedings titled The State v. Fazal Muhammad" pending in the Court of Assistant Commissioner, Burewala District Vahari arising out of F.I.R. No, 158 of 1998, dated 10-3-1998 under section 188, P.P.C. Registered at Police Station City Burewala.
2. The facts briefly stated are that on the written complaint made by Mr. Khalid Manzoor, City Magistrate, Burewala, a criminal case under section 188, P.P.C., was registered vide F.I.R. No,. 158 of 1998 at Police Station City Burewala against the petitioner alleging that on 28-2-1998, the Principal, Government Commercial Training Institute, Burewala submitted an application before the Assistant Commissioner, Vehari that land measuring 28 Kanals and 1 Marla was allotted to Commercial Training Institute, however, some persons including the present petitioner are trying to raise some construction over the said land bearing Khasra Nos. 36/19/36/22/1 measuring about 13 Marlas and have also constructed a wall over there; the complainant alongwith Police party aided the spot and found that Fazal Muhammad, Malik Farooq and Farkas Mahmood have occupied the said land; they also belonged to Qabza group and that according to F.I.R, the complainant directed the Chief Officer and the Tax Superintendent that the illicit construction be demolished and that the accused namely Fazal Muhammad, Malik Farooq and Farkas Mahmood were arrested and F.I.R.
Was lodged against them and that according to Letter No, 189-212/A.C, dated 21-1-1998, section 144, Cr.P.C. Was promulgated to restrain the person to occupy the State land and that while constructing and occupying the State land, the accused have committed offence under section 188, P.P.C.
3. The prosecution submitted the report under section 173, Cr.P.C. Against the petitioner and the same is now pending in the Court of Assistant Commissioner, Burewala for adjudication.
4. The petition is pressed on the grounds that it is settled law that in case of violation of an order passed by the Assistant Commissioner within the meaning of section 144, Cr.P.C., the machinery of law can only be moved by filing complaint by the order of such public servant who promulgated the real order or by his superior as envisaged under section 195, subsection (1) clause (a), Cr.P.C.
And that in the case in hand, there ought to have been a complaint as envisaged under section 4(h), Cr.P.C. By the Assistant Commissioner Burewala himself or by his superior, that is the District Magistrate and under no circumstance the Magistrate, respondent No,3, who is subordinate to Assistant Commissioner and that complaint under section 195, Cr.P.C. For violation of order under section 144, Cr.P.C. Can be lodged by a public servant whose orders have been violated and the complaint by any other person would be incompetent and the proceedings on the basis of such incompetent complaint would be illegal and that in case of violation order section 144, Cr.P.C. The District Magistrate, who promulgated the order alone is competent to lodge the F.I.R. Under sections 188 and 195, P.P.C., and that the case has been registered with mala fide and that earlier a case was also lodged under section 188, P.P.C. Against the petitioner with malice and that the alleged occurrence is false and baseless and that the petitioner has absolutely committed no offence and that no offence under section 188, P.P.C., is made against the petitioner and that ultimate conviction is not possible and as such continuation of proceedings is abuse of process of Court.
5. Notice was issued to the respondents but despite notice, none has entered appearance on behalf of the respondents. They are, therefore, proceeded ex parte.
6. The relevant provision of law on the subject is section 195, Cr.P.C. Which is reproduced as under:- "195. Prosecution for contempt of lawful authority of public servant.--(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 it is subordinate; (b)
(c)
7. In the present case, the concerned public servant was the Assistant Commissioner, Burewala who is subordinate to Deputy Commissioner and the respondent No,3, learned Magistrate, Burewala was neither the "public servant concerned" nor he was superior to the Assistant Commissioner. In this view of the matter, the learned respondent No,3 had no lawful authority to make the, A complaint, as such, the writ petition is allowed and the proceedings titled "The State v.
Fazal Muhammad" pending in the Court of City Magistrate, Burewala arising out of F.I.R. No, 158 of 1998, dated LO-3-1998, under section 188, P.P.C., registered at Police Station City, Burewala are hereby quashed as continuation of proceedings would amount to abuse of process of Court and an exercise in futile.