1990 PLP 1087 (MLD)

Muhammad Siddiq Kharal, Addl A. G. for the State. Date of hearing: 19th February, 1990. The present applicants have moved the present petition under section 561‑A, Cr.P.C. for quashment of the proceedings pending against them under sections 121‑A. 123‑A and 124‑A, P. P. C. before the Sessions Judge, Sukkur in Sessions Case No. 334 of 1987. Briefly the facts are that on 10‑8‑1986 Ghulam Shabir Shahani, the S. H. O. Police Station, Daharki had lodged the FIR as under:‑‑ "The complaint on behalf of the State is that on 9‑8‑1986 a function of Shah Latif Day was organised near Leghari Petrol Pump by Abdul fatah s/o Khair Muhammad Samejo. PC 672 Karam Ali, PC 633 Ghulam Nabi were deputed to go in plain clothes, who on their return reported that the meeting started at 22‑00 o'clock. About 500 persons attended. Some of them were duly armed. Bashir Ahmed Qureshi President of Jiyay Sind Students Federation Province of Sind, Abdul Wahid Mahar, Syed Ghulam Shah, Abdul Wahid Ansar spoke one after another and raised slogans against the Government of Sind that "Pakistan not wanted" "Sindhoo Desh wanted" "We will take rest after ousting Punjabis". This meeting ended on 10‑8‑1986 at 00‑30 o'clock. A report was given to the higher authorities and got instructions from them on phone to lodge report on behalf of the State that above‑mentioned accused convened an illegal meeting and raised provocative slogans against the Government of Pakistan and have conspired for disintegrating Pakistan and have used loud‑speaker. Investigating after lodging report." Consequently, the applicants were challaned and, therefore, this application has been moved for quashment. I have heard Mr. Ruknuddin Kasmi, the learned counsel for the applicants. He has submitted that the very registration of the FIR, investigation by police and taking of the cognizance by the learned trial Court arc void ab initio as the same are 'contrary to the provisions of section 196 of the Criminal Procedure Code. The learned counsel has further submitted that the above acts amount to abuse of the process of the Court. He has submitted that there is a specific bar provided under section 196, Cr.P.C. for taking cognizance of the offences falling under Chapters VI and IX‑A of the Pakistan Penal Code unless upon a complaint made by or order of or under authority from, the Central Government or Provincial Government concerned or some officer empowered in this behalf by either of the two Governments. It will be advantageous to reproduce the provisions of section 196, Cr.P.C. which reads as under:‑‑ "

196. Prosecution for offences against the State.‑‑No .Court shall take cognizance of any offence punishable under Chapter VI or IX‑A of the Pakistan Penal Code (except section 127), or punishable under section 108‑A, or section 153‑A or section 294‑A or section 295‑A or section 505, of the same Code, unless upon complaint made 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." In view of the above provision it may he observed that the present FIR has been registered by the S H O as a complainant and it does not show if the same has been lodged under the orders of Central or Provincial Government or any officer empowered in this behalf by either of the two Governments. All that is said at the end of the FIR is that report was given to higher authorities and getting instructions from them on the telephone the report has been lodged. The F. I. R. does not disclose as to which was the authority that had given such instructions and whether that was the authority competent as provided in section 196 Cr. P.C. The learned counsel for the applicants has placed reliance on an unreported case of this Court wherein Cr. M.A. No. 459/87 (Muhammad Ishaq and others v. The State) the proceedings in similar circumstances were quashed. He has also placed reliance on the case of Maulana Dost Muhammad v. State 1976 P Cr. L J 184 in support of his above contention. I have heard Mr. Muhammad Siddiq Kharal, the learned Additional Advocate‑General also and in view of the contentions raised by the learned counsel for the petitioner, he has conceded and does not oppose the quashment of the proceedings. I have carefully considered the submissions made by the learned counsel for the, applicants and the case‑law cited by him. The offences under sections 121‑A, 123‑A and 124‑A do fall under Chapter VI of the Pakistan Penal Code and therefore, the embargo under section 196 Cr. P.C. is very much applicable which provides that no Court shall take the cognisance of the said offences unless upon a complaint made by order of or under the authority from the Central or Provincial Government concerned or any officer so authorized by any of the two Governments. Accordingly I am of the view that the police was not competent to investigate the case or put up the challan as proper procedure as provided under section 196 Cr. P.C. has not been followed and the same, therefore, are the acts ab initio void and illegal and submission of the challan and taking of the cognizance by the Court amounts to abuse of the process of the Court. In the result I quash the proceedings pending before the Sessions Judge, Sukkur as Sessions Case No. 334/87, taken in consequence of FIR No. 117/86 registered with P.S. Daharki of District Sukkur. N.H.Q./A‑761/K Proceedings quashed.