1. This application under section 561-A, Cr.P.C. Has been filed against the registration of F.I.R. No,10 of 2001 of Police Station Bhit Shah on the complaint of one A.S.-I. Mir Ali Ghulam Talpur of the same police station under section 188, P.P.C. And it has been prayed that the said F.I.R. Be quashed on the ground that it has been registered in violation of section 195 of the Cr.P.C. It has further been urged in the application that the said F.I.R. Is politically motivated and has been lodged in order to curb the lawful political activities - of the applicant.
2. On the other hand a statement has been filed by the S.H.O./Inspector Agha Asghar Ali Pathan stating therein that in fact the applicant/accused alongwith other accused viz. Abrar Qazi, Dr. Dodo Maheri, Hydero alias Ghulam Hyder Mallah, Zain Ansari, Chacha Mohammad Ali Leghari and Dr. Nazir were present at the place of incident viz., Mazar of Shah Abdul I,atif Bhittai and were instigating the public with their speeches and as such this was a violation of section 144, Cr.P.C.
3. Which has been imposed in the area vide order of the concerned Magistrate, dated 24-2-2001 for 30 days. It has been further stated that the Investigating Officer, A.S.-I. Mir Ali Ghulam had investigated the case, whereafter the accused were arrested and produced before the S.D.M.
4. Matiyari, who remanded them to judicial custody. Now the case has been sent to higher authorities for a legal opinion. Consequently it has been averred that the police authorities have acted in a manner as authorized by law and as such the allegations levelled by the applicant are frivolous, concocted and false.
5. Both the learned counsel have agreed to argue the matter finally.
6. In support of the application Mr. Qurban Ali H. Chohan has taken a fundamental legal objection to the lodgment of the F.I.R. On the ground that the same expressly violates the provisions of section 195 of the Cr.P.C., wherein all the offences punishable under sections 172 to section 188 of the P.P.C.
7. Cannot be taken cognizance of by any Court except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Consequently the learned counsel has submitted that where the letter of the law expressly prohibits cognizance of offences punishable under section 188, P.P.C. With which the applicant is charged with as per said F.I.R. Except on the complaint in writing of the concerned public servant, then the registration of the F.I.R. And all subsequent acts following it including investigation as well as remand of the applicant from the concerned Magistrate would be a nullity in the eye of law. He has therefore prayed that in the circumstances of the case where the entire action so far taken by the Police were on the face of the record, a complete violation of the relevant provisions of law and as such since no conviction was possible on the basis of such an F.I.R. It deserves to be quashed. He has further submitted that section 188 of the P.P.C. Of which violation the applicant is charged with is not cognizable and therefore the relevant F.I.R. Could not be registered at all. On this ground also learned counsel seeks quashment of the F.I.R. In support of his arguments Learned counsel has relied upon Barkat Ali v.
8. S.H.O. Police Station Sadar, Kabirwala (2000 PCr.LJ 238), Khalid Iqbal Ghauri v. Allah Ditta, Magistrate (2000 PCr.LJ 1084), Makhdoom Khaliquzzaman v. The State (1999 PCr.LJ 478), Syed Qaim Ali Shah v.
9. The State (1999 PCr.LJ 1221, and Kishore Kumar v. The State (1999 PCr.LJ 1736). , Learned counsel has further submitted that in the circumstances of the case when the impugned F.I.R. Was a nullity in the eye of law and was a patent abuse of the process of Court, then this Court can take jurisdiction and decide the matter and consequently there was no need to approach the Trial Court under section 265-K, Cr.P.C. For this purpose. For this proposition learned counsel has relied upon Miraj Khan v. Gul Ahmed (2000 SCM R 122), Mian Munir Ahmed v. The State (1985 SCM R 257), State through Advocate-General, N.-W.F.P. v. Gulzar Muhammad (1998 SCM R 873), Khalid Iqbal Ghuari v. Allah Ditta, Magistrate (2000 PCr.LJ 1084), Makhdoom Khaliquzzaman v. The State (1999 PCr.LJ 478) and Kishore Kumar v. The State (1999 PCr.LJ 1736).
10. On the other hand learned counsel for the State has opposed the Application primarily on the ground that an alternative remedy was available to the applicant viz. To approach the learned trial Court for the relief for which he has come before this Court. The learned State Counsel has submitted that section 265-K of the Cr.P.C. Provides a forum whereby the applicant could have recourse to the learned trial Court and hence in the circumstances of the case he should be directed to approach the same. For this purpose he has relied upon Ghulam Nabi v. The State (1996 PCr.LJ 1335), Gulzar v. The State (1996 PCr.LJ 80) and Rizwan Hussain v. The State (1999 M LD 2293).
11. He has further submitted that in the circumstances of the case the F.I.R. Could not be quashed and for this purpose he has relied upon Ahmed Saeed v. The State (1996 SCM R 186) and Rizwan Hussain v. The State (1999 M LD 2293). The learned State Counsel has also submitted that the registration of the F.I.R. Was possible as regards the violation of section 144, Cr.P.C. And for this proposition he has relied upon Nisar Ahmed v. Ansar Khan (1994 PCr.LJ 1223).
12. I have heard both the learned counsel and perused the material available on record.
13. ' As regards the maintainability of this application it would be seen that as per well-settled principles laid down by the Honourable Supreme Court, it has been the practice and procedure that when it is demonstrated to the High Court that a particular action, investigation, report or other step in either the lodgment of F.I.R. Or prosecution of a criminal case is patently against the provisions of law or otherwise no case could possibly be made out then the High Court has been clothed with the jurisdiction to quash the proceedings/report etc. As no useful purpose would be served to keep the matter lingering on, which in fact amounts to an abuse of the process of the Courts. For this proposition, the reference can be made to the case of Miraj Khan v. Gul Ahmed (2000 SCM R 122), Mian Munir Ahmed v. The State (1985 SCM R 257). The State v. Gulzar Ahmed (1998 SCM R 873). Consequently the facts of the matter would have to be seen as well as the connected law in order to ascertain whether the proceedings registered by the police authorities against the applicant can be justified under the law. In this connection it would be seen that the provisions of section 195 of the Cr.P.C. Are quite plain and a bare reading of such provisions would sufficiently establish that under section 195(1)(a) it has been laid down that no Court shall take cognizance of any offence punishable under sections 172 to 188 of the Pakistan Penal Code. Except on the complaint in writing of public servant or of some other public servant to whom he is subordinate.
14. Consequently in my view where the prosecution has not followed this provision of the law and instead the police authorities have lodged the F.I.R. In question, the said F.I.R. Would be in patent violation of section 195(1)(a), Cr.P.C. Since it has been provided in so many words that no Court can take cognizance Of an offence under section 188, P.P.C. Except on a complaint made in writing by the concerned public servant etc. Therefore, in my view no prosecution could ever be launched on an F.I.R which has been registered in violation of section 195, Cr.P.C. And natural conclusion is that no conviction is possible under said F.I.R.
15. There is another aspect of the matter viz. Section 188 of the P.P.C. Is not cognizable. However, in this regard the learned counsel for the State argued that per the footnote at the end of the page, in the Schedule, it has been made cognizable and non-bailable vide Notification No,Judl. 1-3(1)89, dated 14-3-1989, without amending the Schedule. In my view the said notification cannot override the provisions of section 195, Cr.P.C. Because it is well-settled law that if there is a conflict between the provisions of any Act or Ordinance and the Schedule thereto, the main provisions of such Act or Ordinance would prevail. In this respect section 195 very clearly provides that no Court will take cognizance of any offence under section 188, P.P.C. Except on a complaint in writing of the concerned officer etc. And thus it would be futile to argue that the Court could take cognizance on the basis of a police report/F.I.R. Therefore, in my view the police could not at all have taken cognizance of the matter and registered the F.I.R.
16. Now coming to the aspect of the matter whether in the circumstances of the case the applicant could directly approach this Court for quashment of the F.I.R. I have already observed that the F.I.R.
17. Was incorrectly lodged and was in violation of section 195(a) of the Cr.P.C. And hence no conviction is possible on the basis of the F.I.R., which would then be equivalent to the abuse of the process of the Court.
18. Consequently in view of the dictum laid down by the Honourable Supreme Court in the case of Miraj Khan v. Gul Ahmed (2000 SCM R 122), I would hold that the applicant has correctly approached this Court under section 561-A, Cr.P.C.
19. For the foregoing reasons this application is allowed and the F.I.R. Is quashed.
20. F.I.R. Quashed.