1. ' By this single order I propose to dispose of these two criminal miscellaneous applications filed under section 561-A, Cr.P.C. seeking quashment of the proceedings pending before the learned Vth Judicial Magistrate, Malir, Karachi, pursuant to F.I.Rs, Nos.83 and 84 of 2002 lodged by complainant Sub-Inspector Aftab Ali of Police Station Gadap on behalf of the State under section 188, P.P.C.
2. ' It is interesting to note that two identical F.I.Rs, are shown to have been registered on 21-7-2002 at 14-00 hours and 14-10 hours respectively by the same complainant S.-I.P. Aftab Ali in respect of the same offence against some unknown persons. Time, date and place of the two incidents is also shown to be the same and after investigation, both the cases have been challaned in the same Court. The contents of the F.I.Rs, -in both the cases (except with the difference in serial number and the time of lodging of the F.I.Rs,) including the comma and full-stop are the same. One of the F.I.Rs, i.e, No,83 of 2002 is reproduced as below :-- "F.I.R. No, 83 of 2002 P.S. GADAP Time and date of occurrence 21-9-2002 13-00 hours Time and date of report 21-9-2002 Name of complainantS,I Aftab ali Offence under section188, P.P.C Place of occurrence Malir River, Karachi Distance between5-6 Kms. South from P.S. Investigation byInspector tikka Khan (Sd/.)
3. Tikka Khan Today I sub-Inspector Aftab Ali Rind of Police Station Gaddap alongwith Sub-Inspector Mushtaq Ahmed, A.S.-I. Mansha Khan in private vehicle started patrolling for the offences under crush and sand (Retti Bajri). During the patrolling, we got information at about 13-00 hours near Malir River that Truck bearing No,JP 5861 and Truck No,LSB-1831 and their drivers namely (not ascertained) who were loading crush and sand in their trucks and while seeing the police party fled away from the spot. That the Home Department, Government of Sindh vide Order No,VII(68) SDJ/2002, dated 22- 8-2002 has imposed 144, Cr.P.C. on (Retti Bajri). That the trucks of accused/owners name (not ascertained) were taken into custody under section 188, P.P.C.That the above mentioned vehicles bearing No,JP 5861 and LSB 1831 were taken into custody of Police and F.I.R. was registered against the accused person under section 188, P. P . C . POLICE PROCEEDINGS The above case is registered against the accused driver/owner name not ascertained resident of not known under section 188, P.P.C. and the same truck was taken into custody. Investigation of this case will be conducted by Inspector Tikka Khan against accused/owner/driver of the truck under section 188, P.P.C. Copy of F.I.R. No,83 of 2002 will be distributed accordingly.
4. Signed/. N. S P. Tikka Khan" At this stage it shall be beneficial to reproduce Notification No,VII(78)SDJ/2002 dated 22-8-2002 alleged violation whereof has given rise to filing of F.I.Rs,, investigation,' submissions of challan and taking of cognizance by the learned. Magistrate. It reads as under:- No, Government of Sindh Home Department Karachi, dated the 22-8-2002
5. No,VII(58)SCJ/2002:--- WHEREAS, ban was imposed for excavation/lifting Rati/Bajri and stones earth etc. from the entire area of Karachi Region for 60 days vide this department's order of even number, dated 17-6-2002, expired on 15-8-2002.
6. AND WHEREAS, for the safety of the public property/Government land, it has been decided to extend the period of ban for further 60 days with effect from 16-8-2002. NOW THEREFORE, I Brig. (R) Mukhtar Ahmed, Secretary, Government of Sindh, Home Department, in exercise of powers vested in me under section 144, Cr.P.C. do hereby order as under:--
(i) No person shall excavate and lift Rati/Bajri and stones earth etc. from the entire area of Karachi Region.
(ii) This order shall come into force with effect, from 16-8-2002 for 60 days.
7. Brig. (R) MUKHTAR AHMED, HOME SECRETARY, (SINDH)."
8. Mr. Adnanul Karim learned counsel for the applicant/accused has vehemently urged that the entire exercise made by the police right from lodging of the F.I.R. till submission of the challan and thereafter taking of the cognizance by the learned trial Court/Vth Judicial Magistrate Malir Karachi is illegal, void without any lawful authority and in clear violation of section 195(1), Cr.P.C. which has clearly laid down that no Court shall take cognizance for an offence under section 188, P.P.C. when the complaint was not filed by the competent authority as envisaged by section 195(1)(a), Cr.P.C.
9. Learned counsel has, therefore, argued to the order of the Secretary, Home Department, Government of Sindh dated 22-8-2002 as referred in the F.I.R. imposing ban under section 144, Cr.P.C. from lifting/taking away Retti and Bajri i.e, stone crush and hill sand from the entire area of Karachi is an order passed in excess of authority and jurisdiction, hence it is a nullity in the eye of law and liable to be quashed being in clear violation of the provisions of section 144, Cr.P.C. as duly amended by Ordinance XXXVII of 2001 which has come into force w.e.f, 13-8-2001 conferring such powers upon "Zila Nazim" instead of District Magistrate, Sub-Divisional Magistrate or any other.
10. Magistrate specially empowered by the Provincial Government or the District Magistrate to act under the said section. Amended section 144, Cr.P.C. reads as follows:--
144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.-- -(1) In cases where, in the opinion of the Zila Nazim upon the written recommendation of the District Superintendent of Police or Executive District Officer there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable; The Zila Nazim may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or a affray.
11. (2)******* (3)******* (4)******* (5)******* (6)******* 7) In the application of subsections (1) to to the districts where the local. Government elections have not been held, or the Zila Nazim has not assumed charge of office, any reference in those provisions to the Zila Nazim shall be read as a reference to the District Coordination Officer in relation to such districts: Provided that this subsection shall cease to have effect, and shall be deemed to have been repealed, at the time when local Governments are installed in the districts as aforesaid."
12. In support of his contention, that order these circumstances any such F.I.R., , which is not lodged by a competent person, is to be quashed, the learned counsel has relied upon the case of Muhammad Inamul Haq v. The State 1998 PCr.LJ 93 wherein the proceedings under section 188, P.P.C. were quashed on the ground that though section 188, P.P.C. has been made cognizable but no corresponding amendment has, been made in section 195, Cr.P.C. Mr. Adnanul Karim has also referred to the case of Syed Abdur Rehman Shah etc. v. S.H.O., Police Station Mansehra etc. 1996 PCr.LJ 483 wherein while taking into consideration the said provisions of law, it has been held that no Court shall take cognizance of a case for violation of section 144, Cr.P.C. made punishable under section 188, P.P.C. except on a complaint in writing of that public servant who happened to be author of such an order or some other public servant to whom he is subordinate, as laid down in section 195(1)(a), Cr.P.C. and in the absence of consequential amendment in section 195, Cr.P.C. this Court in exercise of its inherent powers to prevent the abuse of the process of any Court, or to secure the ends of justice can quash the proceedings initiated on the report of a Police Officer and not on complaint of a public servant who had promulgated section under 144, Cr.P.C. even if the applicant did not take any recourse for redressal of his grievance by approaching the trial Court under section 249-A, Cr. P. C .
13. Mr. Fazlur Rehman Awan learned State Counsel has very rightly conceded that the order of the Secretary, Home Department, Government of Sindli dated 22-8-2002 as sought to be quashed in these proceedings was passed by him in excess of his authority and jurisdiction as after amendment in section 144, Cr.P.C. through Ordinance No,XXXVII of 2001 it is the Zila Nazim who can pass such orders.
14. I had asked the learned State Counsel to call a representative/concerned Section Officer from the Home Department to produce the relevant file before this Court and to show as to under what authority the said order of promulgation of section 144, Cr.P.C. was passed by the Secretary, Home Department, Government of Sindh on 22-8-2002 or even at some other occasions prior to that as is evident from the said order. Mr. Khalilur Rehman, Section Officer (Judicial-I) who appeared in Court alongwith the relevant file was unable to point out any provision of law authorizing the Secretary, Home Department, Government of Sindh to promulgate section 144, Cr.P.C. or pass any such order.
15. The upshot of the discussion made above makes it crystal clear that powers under section 144, Cr.P.C. after 13th August, 2001 can be exercised only by a Zila Nazim, and the Secretary, Home Department, or any other authority has no jurisdiction to exercise such powers to enforce and promulgate section 144, Cr.P.C. in a particular area. The order dated 22-8-2002 passed by the Secretary, Home Department, Government of Sindh is without lawful authority and jurisdiction and amounts to usurpation of the powers which now stand conferred upon "ZILA NAZIM".
16. Coming to the next point as to whether it shall be appropriate to exercise the jurisdiction directly under section 561-A, Cr.P.C., I am also of the considered view that it is now well-settled that in appropriate cases this Court is competent to exercise its inherent power under section 561-A, Cr.P.C. directly without waiting for an order from the trial Court in the first instance. Resultantly, these applications are granted and the proceedings pending in the Court of learned Vth Judicial Magistrate Malir, Karachi under section 188, P.P.C. against the applicant consequent upon F.I.Rs, Nos.83 and 84 of 2002 of Police Station Malir are hereby quashed.