1. This is an application under section 561-A, Cr. F. C., praying for the quashment of the proceedings under section 182, P. P. C. Pending against the applicant in the Court of a learned Additional City Magistrate, Karachi.
2. The facts of the case are that the applicant, who is employed as an Assistant Sanitary Inspector in the Karachi Municipal Corporation, lodged a report on 21-5-1976, with A. S. I. Kamyab Khan of Landhi Police Station alleging that his scooter had been stolen by Bashir and Munshi, while it was parked in front of the house of one Sardar Masih On investigation, the Police came to the conclusion that the report filed by the applicant was false and that the scooter was borrowed by Munshi Masih from the applicant himself, for leaving the former's brother at his house, and the scooter was left by Munshi Masih in front of the house of the applicant. The police accordingly submitted a report/complaint .Against the applicant in the Court of a learned Additional City Magistrate, who has taken cognizance of the offence and initiated proceedings against the applicant.
3. Since the main ground of attack on the impugned proceedings was that the report/complaint, on the basis of which the proceedings have been instituted, was made not by A. S. I. Kamyab Khan, who had investigated the case, but by another A. S. L, I had directed the learned counsel for the applicant to satisfy the Court that A. S. I. Kamyab Khan was still attached to Landhi Police Station and had also ordered notice to issue to the learned Advocate-General to make his submissions se to what would be the legal position if it was fount that A. S. I. Kamyab Khan was no longer attached to Landhi Police Station.
4. I have heard Mr. Ghulam Mustafa Memon, the learned counsel for the applicant, and the learned Advocate-General. The learned counsel for the applicant stated at the Bar that A. S. I. Kamyab Khan was no longer at Landhi Police Station and that he had retired shortly after the lodging of the F. I. R. By the complainant. The learned counsel, however, submitted that the retirement of the A. S. I.
5. Made no difference and the complaint In the instant case could only have been filed either by A. S. I. Kamyab Khan or the Officer to whom he was subordinate. The contention of the learned counsel is founded upon clause (a) of subsection (1) of section 195, Cr. P. O., which reads as follows : "195 (1) no Court shall take cognizance-
(a) of and offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate."
6. The contention of the learned counsel for the applicant was that the words "public servant concerned" in the above clause means the actual person holding the office at the tine when the offence was committed or to whom the false information was given, and not the holder of the office, so as to enable the successor officer, to file a complaint under the said clause. In support of his contention, the learned counsel sought to rely upon 3 Single Judge decisions in Sher Muhammad v. Emperor AIR 1940 Lah. 15, Mir Ahmad v. Niaz Muhammad PLD 1972 Pesh. 128 and Abdul Hannan v. Stare PLD 1973 Pesh.
175. I have gone through these decisions and I am of the opinion that none of them support the contention of the learned counsel.
7. The facts in Mir Ahmed's can were that on a dispute having arisen between the parties in regard to a piece of land the police instituted proceeding under section 145, Cr. P. C. In the Court of Mr. Fida Hussain Khan, the lllaqa Magistrate, who issued notice to the parties. The case was subsequently transferred to various other Courts and lastly to the Court of A. C. Tank. One of the parties made an application to the Assistant Commissioner that the opposite-party had contravened the order of Mr. Fida Hussain Khan and that a complaint should accordingly be filed against it. The learned Assistant Commissioner, however, dismissed this application, and the matter was taken up to the High Court. Relying on the decision of the Peshawar High Court in Bikarilal v. Shaikh Qadir Hanyari PLD 1967 Pesh. 307 it was held that the only officer who could file a complaint was Mr. Fida Hussain Khan, whose order had been allegedly contravened. On a comparison of the various clauses of subsection (1) of section 195, Cr. P. C. And keeping in view the language of subsection (5) of that section, ii was held that the expression "public servant concerned" appearing in clause (a) of subsection (1) was limited to the officer to whom the false information was given or whose order was contravened and did not include his successor in office. In this case the question was not considered as to what would be the effect where the person in respect of whom the offence was committed had retired, as in the present case, or had died. Furthermore, even the anamolous position that would have arisen was not considered, if the complaint bad been filed by a superior of Mr. Fida Hussain Khan at his now place of posting, who may have had no jurisdiction whatsoever in the Ilaqa of which Mr. Fida Hussain Khan was incharge at the time when he passed the order that was alleged to have been contravened.
8. The point at issue in Abdul Hannan's case, was similar in Sher Muhammad's case, as in the former case the complaint was made by an A. S.1. Though the alleged false information was given to the S. H. O. It was held that the complaint should have been lodged with the Court by the S. H. O. And not an A. S. I.
9. The learned Advocate-General, on the other hand, has submitted that the expression "public servant concerned" in section 195 (1) (a) means not the actual person to whom the false information was given or in respect of whom the offence has been committed, but the holder of that office, anti thus includes the successor in office of the person concerned. In support of his contention, the learned Advocate-General has referred me to the decisions in Emperor v. Chhedi Singh AIR 1939 Oudh 160 and Jot Narain v. Emperor AIR 1939 Sind 164.
10. I find myself in respectful agreement with the view taken by the Sind Chief Court and Oudh Chief Court and hold that the proper construction to be given to the expression "public servant concerned" as appearing in section 195 (1) (a) is the public servant holding for the time being the office held by the public servant in respect of whom the offence was committed.
11. It was submitted by Mr. Ghulam Mustafa Memon that in the instant case there has been a further violation of the provisions of clause (a) of section 195 (1), Cr. P. C. Inasmuch as, instead of filing a complaint as required by that clause, a challan/report has been submitted against the applicant.
12. No doubt, the complaint/report is headed "challan/report", but a perusal of the same shows that in fact it is a complaint of an offence under section 182, P. P. C., and fulfils all the requirements of a complaint as defined in clause (h) of section 3, Cr. P. C. The question of form is not material. What is material is that there should be as allegation made, whether orally or in writing, to a Magistrate, stating that some person has committed an offence, and the allegation should be made with a view to his taking action under the Code. I have carefully scrutinized the complaint/ report and I find that it fulfils all the requirements of a complaint despite it being erroneously ,headed as "challan/report". It contains full details of the alleged offence as in a complaint.
13. I am accordingly of the view that there is no merit In this application. I, therefore, dismiss the same in limine.