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Petitioner: STATE VS Respondent: MUSA KHAN
1994 P Cr
1994 P Cr. L J 2354
[Peshawar]
Before Abdur Rehman Khan, J
THE STATE---Appellant
Versus
MUSA KHAN---Respondent
Criminal Appeal No.5 of 1987, decided on 16th March, 1994
North-West Frontier Province Local Government Ordinance (IV of 1979)---
----Ss. 39-K & 39-L---Criminal Procedure Code (V of 1898), Ss. 417 & 4(1)(h)---Appeal against acquittal---Complaint initially was not made by the competent Authority as envisaged by S.39-S of North-West Frontier Province Local Government Ordinance, 1979 and mere endorsement on the Police Report by an Election Officer could not make it a complaint in legal sense---Trial Court, therefore, had rightly acquitted the accused---Appeal against acquittal of accused was dismissed accordingly.
Roshan Khan for the State.
Mian Rafiquddin for Respondent
Date of hearing: 16th March, 1994.
JUDGMENT
This appeal has been referred by the State through Advocate-General from the order of the learned Sub-Divisional Magistrate, Peshawar, dated 27-10-1986, whereby the accused-respondent was acquitted of the charge under sections 39-A and 39-L of the Local Council Ordinance, 1979.
2. It is alleged against the accused that on the day of election to the Local Council he was found canvassing in the premises of the election and violated sections 39-K and 39-L of the Local Council Ordinance in bringing out the ballot-box and dashing it to the ground.
3. I heard both sides and went through the record.
The sole reason for acquittal of the accused from the offence was that no complaint had been made by the competent election authority as required by section 39-S and therefore, the proceedings in the case on the police report were illegal. The record shows that the present proceedings were initiated against the accused on the report of the S. H. O. Police Station Kabuli. The learned counsel appearing in support of the appeal submitted that there appears endorsement of the officer on Special Duty of the Provincial Election Authority N. -W. F. P. on the challan to the effect "Forwarded please", which according to him satisfied the requirements of law of the complaint made by the Election Authority. This argument is without substance. The complaint initially should have been by the competent authority as envisaged by section 39-S and the mere endorsement by an Officer of the Election Office would not make it a complaint in legal sense. The definition of the complaint in the Criminal Procedure Code is to the effect that:--
"Complaint".---- 'Complaint' means the allegation orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does include the report of a Police Officer."
The police report in this case does not satisfy the requirement of the complaint and mere endorsement by an Election Officer would also not render this police report as a complaint. The learned trial Judge was, therefore, correct in holding that in absence of a complaint by the competent Election Authority the proceedings against the accused-respondent would amount to abuse of process of law and, therefore, rightly acquitted him. I find no substance in this appeal and accordingly dismiss it.
N. H. Q./1613/P Appeal dismissed.