' The respondent in this case one Ali Hussain s/o Mohammad Hussain was sent up before the learned Additional City Magistrate No, XVIII, Karachi for trial under section 186 of the Pakistan Penal Code. The facts that were alleged against him were that the respondent was a history-sheeter of the Preedy Police Station and had repeatedly, despite being required to do so, failed to come to the police station and consequently a prayer was made to the Assistant Commissioner and Sub- Divisional Magistrate Civil Lines to issue an order under section 5 of the Finger Prints Act, XXXIII of 1920 directing that he should so appear and give his photograph and finger prints for the record.
Despite this it is alleged that the respondent who did receive the order in question failed to appear and in consequence thereof was prosecuted as I have already stated.
2. The respondent then applied to the Additional District Magistrate, Karachi under section 435 of the Criminal Procedure Code and, in consequence thereof, the learned Additional District Magistrate has made a reference to this Court requesting that this Court satisfy itself as to the propriety, legality and the correctness of the proceedings against the respondent.
3. The learned Magistrate has pointed out that the facts alleged clearly make out no offence under section 186 of the Pakistan Penal Code which reads as follows :- "Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to live hundred rupees, or with both."
4. Now there was no question here of the respondent obstructing a public servant in the discharge of his duties and the allegations make out at most a case of wilful disobedience to an order.
Assuming without holding that the order which was issued to the respondent was legally binding upon him then clearly the offence made out by the facts alleged would be one under section 174 of the Penal Code which penalizes the intentional omission to attend when required so to do at any time and place by a public servant legally competent to issue an order of that kind. The prosecution for an offence under section 174, however, is barred by the provisions of clause (a) of section 195(1) of the Criminal Procedure Code except upon the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. In other words if the present is to be regarded as a prosecution under section 174 then it is not legally maintainable without the complaint of the Magistrate who issued the order. Admittedly there is no such complaint congnizance has been taken upon a police report.
5. I accordingly quash the proceedings but wish to make it clear that if the learned Sub-Divisional Magistrate who issued the order in the first instance to the respondent, thinks it fit to do so, the present order is no bar to his filing a complaint under section 174 of the Pakistan Penal Code. I am of course recording no finding at all upon the question whether the order, disobedience of which is alleged, was itself a lawful order or not and whether the public servant in question, that is to say whether the learned Sub-Divisional Magistrate. Was legally competent to issue the order.