P L D 1997 Peshawar 180 (PLP)

(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the P.P.C. (Act XLV of 1860) is alleged to have been committed against the President, the Prime Minister, A Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions. A Court of Session may take cognizance of such offence, without the accused being committed to it for trial upon a complaint in writing made by the Public Prosecutor. (2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to accused of the offence alleged to have been committed by him. . (3) No complaint under subsection (1) shall be made by the Public Prosecutor except with the previous sanction, (a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government authorised in this behalf by the Government in this behalf, (b) in the case of a Federal Minister or Minister of State, Chief Minister or Provincial Minister or any Secretary to the Government authorised in this behalf by the Government concerned; (c) in the case of any public servant employed in connection with the affairs of the Federation or of a Province of the Government concerned. (4) No Court of Session shall take cognizance of an offence under subsection (1) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (5) When the Court of Session takes cognizance of an offence under subsection (1), then, notwithstanding anything contained in this Code, the Court of Session shall try the case without the aid of jury or assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrates of warrant cases instituted otherwise then on a public report. (6) The provision of this section shall be in addition to, and not in derogation of those of section 198, Cr.P.C." It is further submitted that the said Act XXV of 1974 was completely repealed vide Ordinance XXVII of 1981 (Published in PLD 1982, Central Statutes). He argued that even if under the protection of saving clause in Ordinance XXVII of 1981, i.e. section 7, the remedy could be availed of the saving clause, even then under section 198‑A, Cr.P.C., a complaint could only be filed by a Public Prosecutor after getting a proper sanction from the Government.

7. In the instant case, the complaint in question was no doubt signed by the Public Prosecutor, but it was submitted by the respondent Asif Jan though through Public Prosecutor but the same has not been drafted or submitted by the Public Prosecutor and further it could only be filed after obtaining sanction of the Provincial Government. In the case in hand, sanction of Government is not obtained and mere authorisation order issued by the Solicitor to Government of N.‑W.F.P. would not be sufficient to be treated as sanction order from the Government.

8. I have concisely considered the contentions of the learned counsel for both the sides and have perused the record and have dilated upon the various provisions of the law with their valuable assistance.

9. Ordinance XXVII of 1981 is minutely taken into consideration, whereby Act XXV of 1974 was completely repealed, but I am constrained to hold that Ordinance XXVII of 1981, on the strength of which Act XXV of 1974 wits repealed having no impact en the various additions, deletions and amendments brought in various enactments and laws through Act XXV of 1974. The amendments/additions which have been made in the original Acts, have become part and parcel of the respective Acts and by repeal of Act XXV of 1974, the same are not effected and, therefore, I am of the view that repeal by Ordinance XXVII of 1981 of Act XXV of 1974 has no impact on section 198‑A, Cr.P.C. which would be treated very much alive and available on Statute book with its full force.

10. If the Legislature wanted to omit section 198‑A, Cr.P.C. from the Statute book it could be easily done by a specific repealing Act/Ordinance. The list/schedule containing various enactments which have been repealed through said Ordinance XXVII of 1981, also contains the Electricity ~ Amendment Ordinance, 1979, besides other enactments but the amendments incorporated through the said Ordinance in the Electricity Act are still operative with full force and the same are being applied by the concerned authorities and fully acted upon by the Courts. The Act XXV of 1974 has also substituted the words "imprisonment for life" in place of words "Transportation for life" in different proviso/parts of sections 497, 498 and 512, Cr.P.C. which still firmly holds the field. Thus, the proposition canvassed by the petitioner's side is entirely misconceived and misplaced.

11. The index and purpose behind the Ordinance XXVII of 1981 is one and the same which is given also in the West Pakistan Repealing Ordinance XVIII of 1970, preamble to which is as follows:‑ "Whereas it is expedient that the enactments specified in the Schedule which are spent or have otherwise become unnecessary or have ceased to be enforced otherwise than by expressed specific repeal should be expressly and specifically repealed." The language of this preamble gives and conveys an idea clearer than crystal that the sole object of the amendments, Acts/Ordinances incorporating amendments in the main Statute is that their status is that of carriers of certain statutes and when this purpose is achieved after the amendments are incorporated into the Body of the main statute, then these statutes become spent, dead and excised one and do not serve any further purpose and for this very reason this become essential for the Legislature to strike it away by removing it from legislation in the shape of repealing and revising Acts/Ordinances.

12. So fur the required sanction of the Government under section 198‑A, Cr.P.C. for filing of complaint before the competent Court of law is concerned, learned counsel for the respondents stated that though the authorisation to file the complaint before the Court had duly been given by the Solicitor to Government of N.‑W.F.P. to the learned Public Prosecutor which is in fact a sanction from the Government, but even then a separate sanction order for prosecution of the complaint has been solicited from the Secretary to Law Department, Government of N.‑W.F.P. and the same would be available within a week's time mid will be placed on the record of the case for satisfaction of the petitioners.

13. In the circumstances, the revision petition having no merit is hereby dismissed. N.H.Q./2188/P Revision petition dismissed