1988 P Cr (PLP)

Ruknuddin Kasimi for Applicants. Amanullah Qureshi on behalf of A.A.‑G. for the State. Date of hearing: 11th October, 1987. This is a petition filed by applicants Muhammad Ishaque, Hashmat Mal, Abdul Karim and Sudhamo Mal alias Shadmano Mal under section 561‑A, Cr.P.C. seeking quashment of the proceedings in Sessions Case No. 62 of 1987 pending in the Court of 1st Additional Sessions Judge, Sukkur under section 124‑A, P.P.C. Briefly the prosecution case is that the S.H.O. Glrulam Hussain Jatoi of Police Station Mirpur Mathelo received the letter from S. S. P., Sukkur in compliance of letter of District Magistrate, Sukkur consequent to which he registered F.I.R. on behalf of the State under section 124‑A, P.P.C. on 13‑12‑1986. According to F.I.R. the above‑named applicants on 16‑10‑1986 in a Mela organized by Hindu Community in village Hayat Pitafi at night time. During music programme of Artist Allan Faqir, the applicants raised slogans against the Government and were creating disturbance in public. Hence, the complaint was lodged and as alleged the slogans raised were to incite the general public. Mr. Ruknuddin Kasmi, learned counsel appearing for the applicants has challenged the proceedings and raised legal point challenging the investigation conducted by the police and the cognizance taken by the Court. He has argued: (1) that the offence under section 124‑A, P.P.C. was not a cognizable offence. As such the arrest of the petitioners and also subsequent acts were without legal sanction thus illegal. (2) that section 196 of the Criminal Procedure Code provided bar to take cognizance for offence under section 124‑A, P.P.C. I have heard the learned counsel for the applicants. Section 124‑A, P.P.C. creates an offence which is not cognizable. Apart from this under section 196, Cr.P.C. no Court can take cognizance of said offence unless upon a complaint made by order of or under authority from the Central Government or the Provincial Government or some other officer empowered in this behalf by either of the two Governments. It is also clear from the provisions of section 196, Cr.P.C. that not only the investigation into an offence under section 124‑A, P.P.C. is barred but taking of cognizance even by Court is not permissible as section 196, Cr.P.C. creats a clog on the taking of cognizance removable only by making of a complaint by order of or under authority from, the Central Government or the Provincial Government concerned, or some Officer empowered in this behalf by either of the two Governments, which is apparently and significantly and undisputedly wanting in the present case. The learned counsel in support of his contention has placed reliance on the case of Maulana Dost Muhammad v. The State reported in 1976 P Cr. L J 184 and has stoutly argued his case is fully covered by the dicta laid down in the above citation. I have also heard the learned counsel appearing for the State Mr. Amanullah Qureshi. I am of the view that it is the well‑settled proposition of law that where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all. I find force in the contention of the learned counsel for the applicant that the entire investigation in the present case, which is non-?cognizable case is without sanction of law as provided under section 196, Cr.P.C. as such a nullity in the eye of law and cannot be the basis of a report. Due to the non‑compliance of the requirement of law the entire proceedings including the taking of cognizance by the Court is, therefore, ab initio, void and illegal. The learned counsel has made reference to the case of Mst. Mumtaz Begum and 4 others v. The State reported in 1968 P Cr. L J

97. Mr. Amanullah Qureshi, learned counsel appearing for the State has conceded to the submissions raised and does not oppose the quashment of the proceedings. After careful consideration of the arguments put forth by the applicant's counsel and having considered the decisions referred to by counsel and other aspects of the case I am clear in, my mind that the police was not competent to investigate the case or put up challan as proper procedure for lodging of report under the law had not been followed and the submission of the challan was without sanction of law and illegal. The learned Magistrate who had initially taken the cognizance and sent up the case for trial to the Sessions Court also acted illegally, as such it was abuse of process of the Court. Since the provisions clearly prohibit the registration of case without authority from the Central Government or the Provincial Government or some officer expowered in this behalf. All proceedings according to me are, therefore, illegal. In the result, I quash the pending proceedings in the case State v. Muhammad Ishaque and others pending in the Court of First Additional Sessions Judge, Sukkur. These are the reasons for my short order passed on 11‑10‑1987. Criminal Miscellaneous Application No. 459 of 1987 is allowed as above. M.Y.H./M‑414/K??????????????????????????????????????????????????????????????????????????????? Proceedings quashed.