Haji Muhammad Aslam son of Muhammad Sadiq has filed the instant writ petition laying challenge to the order of the Judicial Magistrate, Kharian, District Gujrat, dated 6-3-2000 whereby the accused of F.I.R. No,113 lodged at the instance of the petitioner were discharged and the Investigating Officer was directed to proceed against the complainant/petitioner according to law for nominating innocent persons in the said F.I.R.
2. Learned counsel contended that in the first instance the report prepared by the police was not based on cogent evidence and merely past litigation between both the parties was taken in account. It was urged with emphasis that the Judicial Magistrate, Kharian clearly exceeded his jurisdiction to direct the Investigating Officer to proceed against the complainant for nominating wrong persons in the F.I.R. Lastly it was stated that the police before submitting the Qalandra under section 182, P.P.C. Should have given a show-cause notice to the petitioner/complainant.
3. The writ petition was admitted to regular hearing and notice was issued to the respondents who have controverted the assertions made by the counsel for the petitioner by submitting his arguments.
4. Haji Muhammad Aslam the present petitioner on 6-3-2000 lodged F.I.R. No,113 with Police Station Kharian in which he stated that on the night between 28/29-2-2000 at 12-30 a.m. When he was sleeping in his house with his family members all of the sudden he woke up as a result of barking of his dogs and came out of his room; in the light of electric bulb situated in the courtyard of his house he saw three persons armed with fire-arms who caught him and started giving him beating at which moment he saw Muhammad Waris and Muhammad Afzal sons of Qadar Dad also armed with fire-arms standing on the roof of his house and they exhorted the three, unknown persons to take him along with his family members in the room where he was taken and he found there his wife and daughter already present, all of them were locked in the said room but before going the accused took away the keys of the locks of the boxes lying in the house; later on they found that gold ornament and cash of Rs,53,000 were removed alongwith some watches. On their hue and cry some witnesses arrived.
5. Petitioner was examined medically on 29-2-2000 at 11-30 a.m. And six injuries were found on his person as per medico-legal report copy of which has been appended with the file.
6. However, during investigation conducted by the S.H.O. Police Station, Kharian he reported on 6-3- 2000 that there was enmity between the parties evidenced by various cases filed in Civil and Criminal Courts and in order to harass and humiliate his opponents the petitioner has wrongly nominated respondents Nos.8 and 9 in F.I.R.
113. It is, therefore, prayed that the accused be discharged. On this application the following order was passed by respondent No,4:-- "Accused present in police custody. I.O. Present. Complainant also present who states that accused are not his culprits. Hence the accused are discharged. I.O. Is directed to proceed against the complainant according to law for nominating innocent accused in F.I.R."
7. Certified copy of an undated Qalandara under section 182, P.P.C. Signed by S.H.O., Police Station Kharian was filed as Annexure 'E' to the writ petition and the same has been addressed to the Magistrate for taking action.
8. An application under section 249, Cr.P.C. For quashing the proceedings taken by the police under section 182, P.P.C. Was made which was dismissed on 6-6-2000 by the Magistrate 1st Class, Kharian.
9. I have considered the arguments of the respective counsel and have also scrutinized the record.
10. The prerogative for proceedings under section 182, P.P.C. Lies only with the police officer who has moved the machinery of law against the accused persons nominated in the F.I.R. By the complainant. Section 182, P.P.C. Is reproduced for facility of reference:-- "182. False information with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false intending thereby to cause, or knowing it to be likely that he will thereby cause such.Public servant --
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." The wording of the section when split provides the following essential ingredients:--
(i) information to a public servant;
(ii) informant is in the knowledge that such information is false;
(iii) information is given knowingly to cause such public servant to do or to omit anything which such public servant ought not to do or omit if the true state of facts respecting such information is given were known by him, or to use the lawful powers for such public servant to the injury or annoyance of any person.
8. It is the public servant to whom a false information is given by a person knowing it to be false, who thereafter, moves the machinery of law against the accused person to his detriment or to the injury or annoyance of the accused person. The framers of law left the question for determination to the public servant, as to how far powers exercised, by him cause detriment, annoyance and injury to the person proceeded against as accused in consequence of the false information given to him by the complainant. It is not for any other authority to direct the concerned police officer to proceed against the first informant who is giving false information. There may be cases where due to mistake of fact wrong person may have been named and this mistake can only be rectified if a chance is given to the complainant before proceedings against him to show cause as to why action may be taken. In the present case the occurrence took place in the dark hours of the night, possibility of mistaken identity cannot be ruled out, therefore, the Magistrate instead of directing the police officer authoritatively to proceed against complainant for nominating innocent persons in the F.I.R., should have left it to the discretion of the concerned police officer to use his prerogative if he so desired strictly in accordance with law. It may be pertinent to mention at this juncture that complainant was medically examined the next day and found to suffer six injuries caused by blunt weapons meaning thereby that some occurrence took place. His direction curtailed the independent exercise of will by the concerned police officers. The order for registration of case under section 182, P.P.C. Therefore, stands tainted by the use of authority of the Magistrate for which he had no jurisdiction to do so. The role of the Magistrate ended as soon as he agreed with the report of the police officer arid discharged the accused. The direction to proceed against the complainant was as clearly beyond his powers and the laws as reproduced above, excluded authoritative directions by the Magistrate same being totally uncountenanced which not only needs strong deprecation but has to be strictly curbed. The apportionment and allocation of powers within the scheme of Code of Criminal Procedure and other laws is very clean and when one authority travels in the realm of powers to be exercised by another authority, the mischief starts unraveling itself which breeds unending litigation apart from creating bad blood between respective parties.
9. Viewed from another angle the impugned order also suffers from yet another illegality which is absence of a show-cause notice to the complainant against whom proceedings under section 182, P.P.C. Are contemplated to be taken. Proceedings under section 182, P.P.C. Are judicial in nature and envisaged, as discussed earlier a false information given to a public servant upon which he usses his powers to the detriment of an innocent person. In other words an act or omission has taken place for which the complainant has become blameworthy. Before a judicial action is taken in all fairness the subleties of law require at least a show-cause notice asking from the complainant the reasons why he should not be proceeded against for which he should be given a chance to reply.
In most of the cases, the matter can be truncated after consideration of the reply. If the reply is satisfactory and convinces the public servant that information given to him was based on mistake of fact or other plausible reason the proceedings can be dropped. I in guided in my view by the case of Muhammad Murad v. The State reported in 1983 PCr.LJ 1097, wherein it was held that show- cause notice to an accused was necessary before proposed action could be taken against him. In this authority earlier case-laws reported in the following cases were taken into consideration: Sarwar Begum v. The State (1974 PCr.LJ Note 114 at page 73, Khan Ghulam Qadir Khan Khakwani v.
A.K. Khalid (PLD 1960 Lahore 1039) and Mian Fazal Ahmad v. The State, reported in PLD 1970 Lahore
726. In the case of Sarwar Begum v. The State Mr. Justice K.M.A. Samdani while dealing with the similar question held that a person charged with giving false information to the police is entitled to at least have a show-cause notice before the complainant is filed under section 182, P.P.C. Both the propositions canvassed before me are dealt with in the case of Khan Ghulam Qadir Khan Khakwani v. A.K. Khalid reported in PLD 1960 Lahore 1030, in which the author of the judgment, another Revered Jurist Mr. Justice B.Z. Kaikaus held, that since the Magistrate had filed a complaint under section 182, P.P.C. Under the direction of the Deputy Commissioner, therefore, it was a good and sole ground that the complaint should be quashed because the officer who makes a complaint has to make up his own mind. He cannot file a complaint under the order of someone else, in that case it is that other person who is filing the complaint who has no authority to do so. As regards the second proposition observation was made that if a person is directed to show cause why a complaint under section 182, P.P.C. Should not be filed against him and he pleads that he had made a report under misapprehension he is entitled to lead evidence to that effect.
10. I am at pains to observe that some of the rulings were cited before the Magistrate to whom the application under section 249-A, Cr.P.C. Was given but he lightly brushed them aside by observing that they do not apply to the propositions in hand as the Investigating Officer was directed by the learned Judicial Magistrate to proceed against the informant of F.I.R. No,113. The trial Judge failed to fathom intricacies of law involved and their impact on the powers and jurisdiction of a public servant.
11. The upshot of the discussion is that the entire proceedings adopted, for reasons detailed, is totally illegal and without jurisdiction. The infraction of law committed cannot be remedied by directing the police officer to make up his mind afresh, therefore, there is no alternative but to quash the E proceedings launched against the petitioner under section 182, P.P.C, now under consideration of Judicial Magistrate 1st Class, Kharian, District Gujrat. The writ petition, therefore, succeeds but without any order as to costs.