PLJ 2012 Islamabad 235
Present: Noor-ul-Haq N. Qureshi,
J.
HAROON
WAZIR--Appellant
versus
LINA KHAN &
another--Respondents
P.S.L.A. No. 19
of 2011, decided on 17.1.2012.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 249-A
& 417(2)--Pakistan Penal Code, (XLV of 1860), S. 182--Acquittal
appeal--Question of--Whether appellant was proper person having authority of
law to prefer to P.L.S.A.--Facts of--Allegations were proved to be baseless and
frivolous--Appellant was declared as innocent--Proceedings initiated u/S. 182,
PPC--Validity--Very initiation of complaint seeking prosecution by I.O. on his
own being complainant was ipso facto illegal ultimately, it has no legal force
to continue--Appellant was neither an aggrieved person nor could be termed as
complainant to invoke jurisdiction of High Court through P.S.L.A. hence same
was dismissed. [P. 238] A
Mr. Raheel Niazi, Advocate for
Appellant.
Date of hearing:
17.1.2012.
Order
Through the
present acquittal appeal, the appellant prays for setting aside the judgment
dated 22.8.2011 passed by the learned Divisional Magistrate, Islamabad, whereby
acquitting Respondent No. 1 u/S. 249-A Cr.P.C.
2. Facts in
brief, as stated in appeal, are that Respondent No. 1/accused is `Bhabi' (brother's wife) of the appellant. She levelled allegations against the appellant through an
application of committing theft of golden ornaments and valuable instruments.
As a result of investigation, such allegations were proved to be baseless and
frivolous and such application moved to police against the appellant for
causing humiliation and his harassment, which created harm to his job being
Inspector of Motorway Police.
3. As a result
of disposal of such application as false, declaring the appellant as innocent,
the proceedings initiated against Respondent No. 1 u/S. 182 PPC. Vide order
dated 22.8.2011, Respondent No. 1 was acquitted on the ground that prosecution
did not want to proceed with the matter, hence she was acquitted.
4. Learned
counsel for the appellant argued that it was the duty casting upon the Court to
summon the I.O. in accordance with law for his attendance and PWs. Moreover,
the learned trial Court, while acquitting accused, has erred that acquittal
u/S. 249-A Cr.P.C. can only be passed, when the
charge is found to be groundless or there is no probability of accused being
convicted, therefore, he preferred the appeal on behalf of Haroon
Wazir, against whom, initially an application was
moved.
5. It is a basic
principle governed that in case of acquittal,
principle of double innocence of the accused is to be considered. Moreover, it
appears from the record that lady accused was left languished to face the agony
of trial since last one year i.e. 9.8.2010, the date of submitting report by
the police. Otherwise, it is a duty casting upon the prosecution to procure
attendance of PW, if interested to seek conviction of the accused. But from
perusal of report submitted and order passed, it infers that only purpose of
getting prosecution of the lady accused, was to put
her in agony of trial and nothing else. Therefore, not a single person
appeared, even the appellant, who preferred instant appeal of acquiring
knowledge about acquittal of the accused.
6. While
evaluating the legal aspects of the case to ascertain, as to whether the
appellant is a proper person having authority of law to prefer the present
S.P.L.A. to which, I am impressed with the following propositions of law:--
(i) Since it is
a requirement of law as provided by Section 417 (2) Cr.P.C.
that an application for grant of special leave to appeal from the order of
acquittal, will have to be made to the High Court by the complainant, in case
of acquittal passed in any case instituted upon the complaint. For the
convenience, sub-section (2) of Section 417 is reproduced herein below:
"(2) If such an order of
acquittal is passed in any case instituted upon complaint: and the High Court
on an application made to it by the complainant in this behalf grants special
leave to appeal from the order of acquittal the complainant may present such an
appeal to the High Court.
(ii) So far another legal aspect with regard
to proposition of law envisaged by Section 195 that under such circumstances,
who will be considered as complainant to which, it is a clear guideline
provided by Section 195 Cr.P.C. that only public
servant concerned to whom such false complaint was made, is competent to be a
complainant submits such complaint in writing to Court concerned, otherwise the
Court is precluded by law to take cognizance of the offence. Or some other
public servant to whom, the said concern public servant has also authority by
law to make such complaint in writing. For convenience, relevant part of
Section 195 including (a) are reproduced hereunder:
"195. Prosecution for contempt
of lawful authority of public servants: Prosecution for certain offences
against public justice: Prosecution 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 servant concerned or of some other public servant to whom he is
subordinate."
(iii) The appellant may take another plea that
he being an aggrieved person having authority to submit acquittal appeal as
provided by Section 417(2-A) Cr.P.C., which is reproduced hereunder:
"(2-A) A person aggrieved by
the order of acquittal passed by any Court other than a High Court may, within
thirty days, file an appeal against, such order".
Such a provision can only be pressed
into service, when the appeal is to be preferred within 30-days from the date
of such order passed by the Court. But the appellant preferred the same on
22.10.2011 for which, neither any application for condonation
of delay was moved nor slightly indicated in the contents of the appeal.
(iv) Another legal aspect of this case, which
on perusal of the very report submitted u/S. 182 PPC, unfolded that one
Muhammad Nawaz, ASI Incharge,
P.S. submitted such complaint embodied therein that initially, an application
marked by high officials to ASI Abdul Sattar, was
inquired into by the SHO also and the same, therefore, appeared to be false,
hence proceedings u/S. 182 PPC were initiated. From such report, it transpired
that neither ASI, Abdul Sattar nor the SHO or which
of the Officer amongst both, formed such opinion about the said application
moved by the accused Mst. Lina
Ali, was found false.
7. Therefore, under
no circumstances, ASI, Muhammad Nawaz could be the
complainant seeking prosecution of the lady accused nor it is clear from such
report, as to under whose directions/instructions or orders, he is submitting
such complaint before the Court.
8. Therefore,
the very initiation of the complaint seeking prosecution by Muhammad Nawaz, ASI on his own being complainant is ipso facto
illegal, ultimately, it has no legal force to continue.
9. Therefore, I
am of the view that the present appellant is neither an aggrieved person nor
could be termed as complainant to invoke jurisdiction of this Court through the
present P.S.L.A., hence the same is dismissed in limine.
(R.A.) Appeal
dismissed
