On or about the 10th of January, 1972, respondent No. 2, Dr. Abdul Qayum, made what is styled as a complaint in the Court of the Sub-Martial Law Administrator, Hyderabad, against four persons of whom the present application is one alleging that the four persons therein cited had committed offences under sections 420 and 406 read with 109 of the Pakistan Penal Code. The application is in the form which is usually followed in complaints before Criminal Courts but needless to say that.
Since it was not presented to a Magistrate, it does not come within the definition of the word "complaint" in section 4 of the Criminal Procedure Code. The Martial Law authorities endorsed the so-called complaint to the Superintendent of Police, Sanghar, who in turn passed it on to the Station House Office, Sanghar, for registration of the case under section 420 of the Pakistan Penal Code. The document was, therefore, registered as an F. I. R. And an investigation ensued. It would seem that the C. I. A. Took some part in the investigation of the crime and recommended that the case be challaned under section 420 but the Superintendent of Police, Sanghar, thought other--wise and recommended to the Court of Divisional Magistrate for the issue of what is known as "C Class Summary" on the ground that the case was of a civil nature. The learned Sub-Divisional Magistrate, Sanghar, did not agree with the Superintendent of police and instead took cognizance in the matter after examining the two persons who were named as witnesses in the so-called complaint and issued process under sections 406 and 420 of the Pakistan Penal Code against all four of the parsons named in the original application as accused persons. The present is an application by one of those tour namely, Mst. Khatija praying that the case be quashed or in the alternative be transferred to Karachi.
2. In order to appreciate the questions that arise in this case, including particularly the questions of law, it is necessary to state in outline the facts alleged in the application. According to respondent No. 2, Mohammad Hussain who is the first of the four persons named in the application was a clerk in the office of the Deputy Commissioner, Sanghar, and was, therefore, known to respondent No. 2, who himself is a private medical practitioner at Sanghar and, In about the year 1967, Muhammad Hussain suggested to respondent No. 2, that his own brother Mohammad Saleh, who is also shown as an accused person in tile application was married to a daughter of the petitioner Mat. Khatija and that she, Mst. Khatija, had another daughter, named, lust. Nargis who was of marriageable age and that she could therefore be married to Abdul A.I son of respondent No. 2. The fourth of the persons named in the application was Mst. Zoboo and although it transpires nowhere in the body of the application or in any of the other papers relating to this case, her description as the daughter of Akbar Shah whose widow the applicant Mst. Khatija is, would indicate that she is the daughter of the applicant. At first respondent No. 2 was reluctant to consent to the proposal made to him but, upon the insistence of Mohammad Hussain he eventually agreed and asked him to introduce him to the family of the proposed bride. Thereupon respondent No. 2 was introduced to Muhammad Saleh and the rest of the family by which I suppose is meant Mat. Khatija, Mst. Zeboo and possibly Nargis herself. It was eventually decided that respondent No. 2 should pay four thousand rupees in cash and give 15 pairs of silken clothes to the applicant who should make the preliminary arrangements for the marriage and some days later, accused 2 to 4, that is to say, Mohammad Saleb, Mst. Khatija and Mss. Zeboo came to accused No, 1, that is Mohammad Hussain, and all together came to respondent No. 2 and asked to pay what had been agreed. Thereupon respondent No. 2 paid the money in cash and also gave the 15 pairs of clothes and this it is stated took place in the presence of two witnesses, namely. Mulasim Hussain who is also a Clerk in the office of the Deputy Commissioner. Sangbar, and one Sujawal, a zamindar of Sanghar. In addition respondent No. 2 gave 10 tolas of gold to "these accused", it not being specified to which person exactly the gold was given in order that the ornaments might be prepared of the choice of the bridal party and kept ready for the date of marriage. The date of the marriage was fixed at 4-8-1971 and it is also stated that a betrothal ceremony was solemnized at Karachi on 14-2-1571, but whether this payment of money and the giving of cloth and gold toot place before or after the betrothal ceremony Is not stated. In accordance with the arrangements, then respondent No 2 and his family came to Karachi on 1-8-1911 and stayed at hotel where they talked about the marriage arrangements with all the accused persons other than Ma6smmad Hussain who had earlier expressed his inability to come to attend the marriage at Karachi. On the appointed date that is 4th August, 1971, respondent No. 3 and his party went to the house of the accused persons who then demanded another, sum of Rs. 10,000 and, upon his refusal to pay the extra money demanded, refused to permit the marriage to take place. The respondent No. 2, therefore, had to return to Sanghas where be complained of the matter to Mohammad Hussain who assured him that be would set matters right but, upon his failure to do so, the respondent No. 2 says that he filed the so- called complaint.
3. Now the first question that arises in this case is whether cognizance was legally and properly taken by the Magistrate of the offence alleged. Under section 190 (1) of the Criminal Procedure Code cognizance can be taken by a Magistrate only in one of three ways. Section 190 reads as under :- "190.-(1) Except as hereinafter provided any District Magistrate or Sub-- Divisional Magistrate and any other Magistrate especially empowered in this behalf by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence :
(a) upon receiving a complaint of fact 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.
(2) The Provincial Government may, on the recommendation of the High Court, empower any judicial Magistrate to take cognizance under subsection (1), clause (a) or clause (b) or clause (c) of offences which he may try or send for trial to the Court of Session.
(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall without recording any evidence, Bend the case to the Court of Session for trial."
Now clearly in this case cognizance war not taken under clause (a) because there was no complaint before the learned Magistrate. The expres--sion 'complaint' has a technical meaning in the Code of Criminal Procedure section 4 (1) clause (h) defining it to mean "the allegation made orally op 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". The application made to the Martial Law Authorities not being one to a Magistrate clearly does not qualify as a complaint and, whatever might have been alleged in.4 the report or recommendation of police to the Magistrate, also could not be regarded as complaint because the definition expressly excludes the; report of a Police Officer.
4. In order to see whether cognizance can be said to have been taken under clause (b) of subsection (1) of section 190 it is necessary to refer to some of the statutory provisions in regard to the Investigation by the police of criminal offences. It must first be noticed, however, that what clause (8) requires is "a report in writing of such facts made by any Police Officer", that Is to say, that the report must make an allegation of facts which constitute an offence since the words "such facts" clearly refer tack to the It of course, would not matter use of the same expression in clause (a). That the report does not contain a full statement, or even any statement, of the evidence upon which the facts in question are based; there must, however, be a clear statement of the facts which would constitute the offence. Now referring back to Chapter KVI of the Criminal Procedure Code which relates to "information" to the police and their powers to investigate the Chapter begins with section 154 which requires that every information relating to the commission of cognizable offence shall be entered in a book kept for such purpose and, where it is orally given, it shall first be reduced to writing. In this case of course the first information report is the so-called complaint or application made to the Martial Law authorities which has been entered as a first information report in the prescribed book. There follow provisions in regard to the investigation of non- cognizable offences and cognizable offences and procedures where cognizable offences are suspected and certain other matters including the holding of a preliminary inquiry, the submission of reports and the powers of the police to examine witnesses and for that purpose to enforce their attendance. The first important section in the Chapter, for my present purpose, is section 167 although I shall have occasion later to refer to section 164 as well. Section 167 in substance provides that where the investigation cannot be completed in 24 hours the accused person must anyhow, if arrested and detained in custody, be produced before the nearest Magistrate who is then authorised to remand him to custody from time to time but for a term not exceeding 15 days on the whole, Section 169 then provides that after an investigation has been made and it appears to the officer-in-charge of the police station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate be shall release him upon his executing a bond to appear If required. Now clearly the report of the recommendation that was made to the learned Magistrate was in pursuance of section 169 inasmuch as the Police Officer was of the opinion that the matter was of a civil nature, that is to say, that no criminal offence has been committed. Section 170 next provides that where, however, there is such sufficient evidence or reasonable ground the Police Officer shall forward the accused under custody to a Magistrate in power to take cognizance of the offence upon a police report. There follow two sections which provide for the production of the witnesses and the diary of the proceedings and we finally come to section 173 which provides that where an investigation has baron completed (and clearly in the context what is now being contemplated is an investigation which has yielded the result referred to in section 170) namely, that there Is sufficient evidence or reason and ground for Justifying the forwarding of the accused to a Magistrate) the officer incharge of the Police Station shall "forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the Provincial Govern--ment, setting forth the names of the parties, the nature of the Information and the names of the persons who appear to 5e acquainted with the circum--stances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties". This is the report, usually called a "Charge-sheet" or a "Challan" which is the police report upon the basis of which cognizance could 'betaken under clause (6) of subsection (1), section 190 of the Code. Now clearly the recommendation that was made in this case could not be described as such a report inasmuch as so far from complying with the detailed requirements of that part of section 173 which I have quoted car of being "a report in writing of such facts", it on the contrary expresses the opinion of the police that no criminal offence had been made out.
5. Indeed both learned counsel for respondent No. 2 and the learned Assistant Advocate-General had to agree that cognizance could not have been tat en in this case either under clause (a) or under clause (b) and were, therefore, driven to argue that cognizance was taken under clause (c).
Now clause (c) empowers a Magistrate to take cognizance upon, among other things, his own knowledge or suspicion. It is, however, nobody's case that the learned Magistrate had any personal knowledge or suspicion and we are, therefore, concerned with that part of the clause which empowers the taking of cognizance "upon information received from any person other than a police officer", the only matter which, admittedly, the learned Magistrate had before him which could qualify for this description was the original application. When, therefore, the learned Magistrate says that he has gone through the police papers which he does In his order whereby he takes cognizance obviously he was not entitled to do so for the purpose of clause (c) but, assuming in favour of respondent No. 2, that this can be ignored the fact still remains that all that he had before himself was the original application which, although cam:, to him through the police, could nevertheless be described as information received from any person other than a Police Officer. The fact that the information passed though a Police Officer would not mean that it came from the Police Officer. Now I have already outlined the allegations made in the complaint, so- called, before the Martial Law authorities and it is plain that It contained no allegation which could possibly come under the purview of either section 420 or section 406 of the Penal Code. It is true that in the last paragraph of the application which is headed "prayer" respondent No. 2 does use the word "cheat" but it is not sufficient merely to allege an offence by the name technically given to it by the Penal Code there must be facts alleged which would constitute an offence. Nowhere In the application are there any facts from which it could be inferred that when the payments were made by respondent No. 2 or the various goods given there was an intention on the part of the accused party, if one may conveniently so refer to them, not to carry out their promise. A breach of promise is, it is well established, not cheating ; for the purpose of making out a case of cheating it is necessary that there must be a fraudulent or dishonest inducement by reason of which a person delivers any property to the culprit. As to the offer-cc under section 406 there is not even the formality of saying in the prayer clause that there ass a breach of trust as there has been the statement, that there was a cheating. The only reference indeed to an offence under section 406 is that the entire document is headed "complaint under section 420/406 and 109, P. P. C." Section 109, of course, refers only to abetment
6. But in his order taking cognizance the teamed Magistrate observes : "I have gone through the police papers and also recorded statements of witnesses Mulazim Hussain and Sujawal. I am satisfied that the offence is not of a civil nature but of a criminal nature and appears to fall under section 406/420, P. P. C."
I am wholly unable to see under what provision of law he recorded the evidence of these witnesses Mulazim Hussain and Sujawal. The only conceivable sections under which the statements of witnesses could be recorded otherwise than at a trial are sections 164 and 202 of the Code. Section 164 authorises the recording of any statement made in the course of an investi--gation under this Chapter (meaning Chapter XIV, from which I have already quoted) and it is the case of no party that these statements were recorded in the course of the investigation. Indeed Cue very order of the learned Magistrate shows that he himself recorded the statements of these two witnesses before issuing process. Section 202 on the other hand occurs In the Chapter XVI, which to relates complaints to Magistrates. Section 200, which is the opening section of this Chapter, requires a Magistrate taking cognizance of an offence on complaint at once to examine the complainant upon oath and thereafter section 202 authorises him to postpone the issue of process and in the meantime, to order an inquiry. If, therefore, these witnesses were examined under section 202 then that could only be after cognizance bad been taken and not before. Yet the learned Magistrate is relying upon their evidence for the purpose of taking cognizance. Between the taking of cognizance and issuing of process there is a definite difference. The Magistrate could have taken cognizance but, before taking the step of issuing the process, could have ordered a preliminary inquiry. He could not, however, examine these witnesses and make them the basis of information given to him so as to enable him to take cognizance of the offence.
7. Under none of the clauses of section 190 (1), therefore, am I satisfied that cognizance was properly taken in this case.
8. Looked at, therefore, from any point of view. I must hold that cognizance was not legally taken in this case and must, therefore, set aside the order of the learned Magistrate taking cognizance, though I think upon t a somewhat technical grounds.
9. Another matter which affects the question of taking of cognizance under clause (e) to which I have deliberately not referred so far is that where a Magistrate takes cognizance under clause (c) he is required by section 181 before any evidence is taken to inform the accused that he is entitled to have the case tried by another. It does not appear in this case that such a thing was done. Of course, it may have been the intention of the Magistrate to have done so at a later stage but before the evidence was taken but of this there is no indication on the record. In any case I would not upon this question alone have set aside the order taking cognizance because, Jul any event, the validity of the taking of cognizance would not be affected by something which required to be done after the taking of cognizance I would in that event have only directed that section 191 be complied with and the accused informed of their rights.
10. Even if cognizance had been validly taken In this case, upon the entire circumstances I think the proceeding ought in any case to be quashed under section 561-A of the Criminal Procedure Code.
Now in a case which Is instituted upon a Police Report it does not ordinarily suffice as a ground for quashment to say that the facts stated in the first information report do not constitute an offence because cognizance is taken not upon the first information report but upon a subsequent police report and between tee first information report and in the Police Report under section 173 of the Code there may have been other evidence collected by the police which could eventually justify a conviction. The present case, however, is snore analogous to a case of cognizance being taken upon a complaint since, as I have shown the only legally admissible material with the learned Magistrate had before him for taking cognizance was the application made to the Martial Law authorities, in regard to which I have already expressed my opinion that it does no! Disclose any criminal offence. I am willing, however, for this purpose to look at the evidence of Mulazim Hussain and Sujawal also, although as I have already stated it does not seem to me that these statements were recorded in accordance with law. It is, therefore, necessary to examine the facts stated in the application and the statements of these two witnesses in a little store detail than I have already done. Now according to the application the proposal was first made to the respondent No. 2 In the year 1987 and the marriage eventually was decided to be solemnised upon the 4th August, 1971, though in the meantime a betrothal ceremony had taken place on the 4th of February, 1971. The date upon which the sum Rs. 4,000 was paid in cash by respondent No. 2 and the clothes and gold handed over to the accused party is nowhere mentioned. There could be two possibilities and two only either these payments and making over of the clothing and gold took place soon after the initial was made or only a little earlier than the betrothal ceremony alleged to have taken place on 14th February, 1971. If the former be true then a period of at least three years had elapsed between giving of the money and the articles and the betrothal ceremony which does seem very improbable. It the latter by true then the negotiation for this marriage have taken an inordinately long period In either event there would appear to be some--thing extremely improbable in the events.
11. It would not be right, however, to quash proceedings merely upon the basis that some particular fact is improbable unless indeed it absurd and fantastic that it would be impossible to hold it likely and on which evidence the case could possibly result in acquittal and that, therefore, the pendency of proceedings against accused parties could amount only to an abuse of the process of the Court. It is necessary, therefore, to consider the other facts of the case also. For this purpose it is worthwhile comparing the evidence of Mulazim Hussain and Sujawal with what is stated in regard to them in the application. In the application it is stated that accused Nos. 2, to 4 that is to say of them except Muhammad Hussain who already lived in Sanghar) came to this Muhammad Hussain and then all four came to respondent No. 2 and there, that is to say at then house of respondent No. 2, the money, the clothing and the gold was delivered. In regard to Mulazim Hussain and Sujawal all that is stated is that they were present but is not stated how it is that they came to be there. On the other hand the statement of Mulazim Hussain and that of Sujawal. Although it does support the allegation that these articles were given in their presence describes the circumstances entirely different but, in my opinion, in an equally improbable fashion. According to Mulazim Hussain he happened to be standing in front of his own quarter when Sujawal who had come for some work of his own was also standing with him. After some time respondent No. 2 accompanied by Mohammad Hussain passed from there and Mohammad Hussain called the witness Mulazim Hussain arid Sujawal and told him that they were all going to the quarter of Mohammad Hussain.
Respondent No. 2 then told him, that is to say, after they had reached the house of Mohammad Hussain, that he bad arranged for the engagement of his son with Saleh Mohammad's mother-in- Law. Meat. Khatija, that is the present applicant and, therefore, had brought the clothes, etc., which were then handed over in the presence of the witness. Sujawal too stated that he happened to be standing outside the quarter of Mulazim Hussain with the latter when respondent No. 2 and Mohammad Hussain passed by and respondent seeing the witnesses called them. They then went to the house of Mohammad Hussain where the things were delivered. Why Sujawal happens to lie standing with Mulazim Hussain and why Mohammad Hussain or respondent No. 2 wanted them to accompany them to Mohammad Hussain's house is not stated by anybody. It was a casual meeting and it is not suggested that respondent bad already made arrangements for saying that somebody witnessed the handing over of the goods.
12. It wall be seen in any case that there is a major contradiction between what the application states and what the witnesses state, namely, the place where the goods were handed over; while the application would have it that it was at the house of the respondent No. 2 the witnesses say that it was at the house of Mohammad Hussain.
13. Now I have already commented upon the fact that we do not know when this incident of handing over these goods took place and upon the two possibilities involved. But assuming that these amount to no more than improbabilities the fact still remains that at the very latest on the 4th August, 1971, respondent No. 2 was finally disappointed and apparently came to the conclusion that he was being cheated. Nevertheless the application was made to the Martial Law authorities only on 10th January, 1972, that is five months later. It is true of course that there is no such thing as a limitation in criminal prosecutions but, on the other hand, the;, longer a complaint is delayed the lees become the chances of believing in it is truth more particularly when it is based upon entirely oral evidence. Much more evidence could have been paced on the record! There could have been for example evidence of shopkeepers from whom the clothes were got made and the shopkeepers from whom the gold has purchased. There could also have been evidence of the withdrawal of a sum of Rs. 4,000 from the account of the respondent No. 2 in a bank if indeed he drew the money from the bank. Nevertheless the only witnesses which respondent No. 2 cites in his application are Mulaaim Hussain and Sujawal.
14. I have, therefore, very grave doubts indeed as to the truth of the story but even if the facts be as they are alleged there is not even a hint of any fact which would yield an inference that there was no intention on part of the accused party to carry out their part of the bargain nor any which would constitute a breach of trust.
15. For these reasons I have come to the conclusion that cognizance in this cage was illegally taken and that in any event the entire proceedings must be quashed because a continuance of them can only amount to an abuse of the process of the Court. The question neat arises that sin only one of the accused persons is the applicant in this case, whether the proper order to make would be in her favour only or to quash the case as a whole. It seems to me that it would be anomalous to hold on the one hand that cognizance was illegally taken and that a continuance of the proceedings would amount to an abuse of the process of the Court and yet to permit the continuance of the case against the other three. r Both under section 439 and under section 561-A (a) of the Criminal Procedure Code this Court can act suo motu and it is not necessary that it should have the application of any persons before itself. An order quashing 1 case as a whole would not be to the prejudice of the other three accused persons and there is, therefore, no question that they are entitled to any notice. I accordingly held that cognizance was illegally taken in this case and set aside the order taking cognizance and also quash the proceedings as a whole.
S. A. H.