2 0 1 2 PC r . L J 1791
[Baluchistan]
Before Muhammad Noor Meskanzai J
ABDUL JABBAR ---Petitioner
versus
MUHAMMAD SHARIF and 4 others ---Respondents
Criminal QuashmentNo.291 of 2012, decided on 25th July, 2012.
Criminal Procedure Code (V of 1898) ---
---Ss. 195 & 200 ---Penal Code (XLV of 1860), Ss. 193, 194 & 199 --Constitution of
Pakistan, Art. 199 ---Constitutional petition ---Filing of complaint un der S.195, Cr.P.C. ---
Scope ---Complainant (petitioner) filed complaint under $.200, Cr.P.C., against accused
persons (respondents) on grounds that they allegedly filed fake and fabricated affidavits in
court --Maintainability --Said complaint was dismissed by Trial and Revisional Courts on
merits as accused persons had confirmed the contents of their affiddvits ---Validity ---
Accused persons had confirmed contents of their affidavits during the course of inquiry ---
Complaint filed also suffered from an inherent l egal defect as there was a bar on taking,
cognizance on such complaint within the meaning of S.195, Cr.P.C. ---In case of offences
contemplated under S.195, Cr.P.C., only the public authority or concerned court had the
right to file a complaint and, unless, there was a complaint by public authority or court, as
the case might be, no criminal court could take cognizance of such offences ---Complaint
filed by the complainant was not cognizable and deserved to be dismissed ---Constitutional
petition was dismissed .
Petitioner in person.
Attique Ahmed Khan, Additional P. -G. for Respondents.
Date of hearing: 12th July, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J.---Petitioner has called in question the legality,
propriety and validity of the orders dated 14 th May, 2012 and 13th June, 2012 respectively
passed by Judicial Magistrate, Pishin : and Sessions Judge, Pishin whereby the complaint as
well as revision petition filed by the petitioner were dismissed.
2. Briefly stated, facts of the case are that the petitioner filed a complaint under section 200,
Cr.P.C. pertaining to offences under sections 193, 194 and 199, P.P.C. on the ground that the
respondent No.1 lodged a complaint against him under section 107/151, Cr.P.C. In support of
said complaint, respon dents Nos.2 to 4 filed their fake and fabricated affidavits, thus the
respondents have committed the aforementioned offences. Consequent upon above referred
complaint, the petitioner furnished surety for maintaining peace. On receiving the complaint
filed by the petitioner, learned Judicial Magistrate Pishin, forwarded the same to SHO Police
Station Pishin for enquiry. The SHO in compliance of the order conducted enquiry and
recorded the statements of respondents Nos. 2 to 4 who affirmed their stance taken in the
affidavits. After submission of the report by the SHO, the learned Judicial Magistrate, Pishin
dismissed the complaint. Feeling dissatisfied with the order passed by Judicial Magistrate,
Pishin, petitioner filed a Criminal Revision Petition before t he Sessions Judge, Pishin which
too met with the same fate, hence instant Constitutional Petition.
3. Heard the petitioner in person who submitted that the fake and false affidavits filed by
respondents Nos. 2 to 4 at the instance of respondent No. 1 pri ma facie make out a case
within the meaning of sections 193, 196 and 199, P.P.C. but both the courts below committed
material irregularity while dismissing the complaint as well as revision petition. The
respondents were liable to have been prosecuted and sentenced for managing the false and
fabricated evidence/affidavits against the petitioner.
On the other hand Mr. Atiq -ur-Rehman, Additional Prosecutor -General strenuously opposed
the petition and contended that the petitioner has accepted the version ma de in the complaint
under section 107/151, Cr.P.C. filed by respondent No. 1 and has furnished speace surety. He
stressed that after furnishing peace surety, there was no occasion for the petitioner to have
filed the instant petition or challenge the legal ity and validity of .the complaint or affidavits
filed in support thereof.
4. I have considered the arguments advanced by both the parties and perused record of the
case. There is no cavil with the fact that a complaint was filed by respondent No.1 unde r
sections 107/151, Cr.P.C. and in support of said complaint respondents Nos.2 to 4 filed their
affidavits. It is also established that afterwards, respondents Nos.2 to 4 affirmed the contents
of their affidavits while making statement during the course of inquiry both the courts below
dismissed the complaint of petitioner on such ground. Besides the above position, in my
humble opinion, the complaint so filed by the petitioner, suffers from an inherent legal defect
as there is a bar on taking cognizance on such complaint within the meaning of section 195,
Cr.P.C. Though, both the lower forums have dismissed the complaint filed by the petitioner
on merits, yet have not adhered to the legal proposition i.e. the maintainability and
cognizablity of the complain t within the ambit of section 195(1) clause (b), Cr.P.C. For ready
reference section 195 is reproduced hereinbelow: --
"195. Prosecution for contempt of lawful authority of public servants, Prosecution for
certain offences against public justice; Prosecu tion, for certain offences relating to
documents given in evidence. (1) No Court shall take cognizance:
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code,
except on the complaint in writing of the public servan t concerned or of some other public
servant to whom he is subordinate.
(b) of any offence punishable under any of the following sections of the same Code namely
sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when
such o ffence is alleged to have been committed in, or in relation to, any proceeding in any
Court, except on the complaint in writing of such Court or of some other Court to which
such Court is subordinate, or"
(c) of any offence described in section 463 or pu nishable under section 471, section 475 or
section 476 of the same Code, when such offence is alleged to have been committed by a
party to any proceeding in any Court in respect of a document produced or given in
evidence in such proceeding, except on the complaint in writing of such Court, or of some
other Court to which such Court is subordinate.
(2)…………………………………………………………………………………………
(3)…………………………………………………………………………………………
(4)…………………………………………………………………………………….
(5)…………………………………………………………………………………………
5. I am conscious of the proposition contained in section 190, Cr.P.C. that any person,
having knowledge of the commission of an offence, may set the law at motion by making
a complaint, even if he is not personally interested in or affected by the offence . However,
the provisions of section 195, Cr.P.C. are an exception to the general principle and thus
there is limitation/bar on the power of a Magistrate to take cognizance in the offence
enumerated therein. The object of the section is to stop private per sons from obtaining
sanction as a means of wreaking . vengeance and to give the Court full discretion in
deciding as to whether ally prosecution is necessary or not. The law on the subject stands
settled that in case of offences contemplated under section 1 95, Cr.P.C. only the public
authority or concerned Court has the right to file a complaint and, unless, there is a
complaint by public authority or Court, as the case may be, no criminal Court shall take
cognizance of these offences.
In view of above dis cussion, I am of the considered opinion that the complaint filed by
the petitioner was/is not cognizable and deserved to be dismissed. Though, this aspect of
the case was not adhered by the lower forums, yet complaint being not sustainable has
rightly been dismissed.
Petition stands dismissed.
These are the reasons of my short order of even date.
MWA/68/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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