P L D 1962 Dacca 543 (PLP)

This rule was obtained against an order of revival of the prosecution of the petitioner under section 211 of the Pakistan Penal Code as made by the Magistrate on 14‑9‑59.

2. It appears that the petitioner lodged an information to the police about an occurrence under section 394 of the Pakistan Penal Code. A final report was submitted by the police re commending the prosecution of the petitioner under section 211 of the Penal Cede. Accordingly a case was started under section 211 of the Penal Code against the petitioner. The petitioner, however, filed a Naraji petition against the acceptance of the final report submitted by the police. A judicial enquiry was held and a prima facie case was made out with regard to the case brought by the petitioner against the accused persons. The accused persons were then proceeded under section 394 of the Penal Code. In view of this state of things, the case under section 211 of the Penal Code against the petitioner was disposed of by an order dated 21‑7‑59 discharging the petitioner under section 253 (2) of the Code of Criminal Procedure. The case against the present petitioner was, however, sought to be revived when the case under section 394 of the Penal Code against the accused persons Samad and others were finally disposed of after taking evidence. The petitioner moved the Sessions Court against such an order of revival but without any success.

3. Mr. Sayem, the learned Advocate appearing for the petitioner urged two points before me. His first contention was that the order for revival of the case under section 211 of the Penal Code against the petitioner, was without jurisdiction as the learned Magistrate had no power in law to start a case like that without a formal sanction as required by the rules. He, however, has not laid much stress on this point and has argued with vehemence that whether or not there was sanction in view of the facts of the case, there was no scope for starting or reviving the proceeding under section 211 of the Penal Code.

4. As the learned Advocate for the petitioner does not press the first point on the ground of absence of formal sanction under section 195‑B of the Code of Criminal Procedure, it is not necessary to go into a consideration of the same. It appears to me, as pointed out by the learned Advocate, that whether or not there was a sanction under section 195‑B of the Code of Criminal Procedure, the proceeding under section 211 of the Penal Code cannot be sustained on merits. The learned Magistrate by his order dated 21‑7‑59 has observed :‑ "The allegation against the accused is under section 211, P. P. C. W. A. was issued against him without giving him any chance to show cause. Moreover, he filed a Naraji (protest) petition against F. R. (f) and prosecution under section 211 P. P. C. As a result a judicial enquiry was held and a prima facie case was made out in the case in which the accused was the informant‑complainant. The case is under trial. As such, the accused is not liable under section 211, P. P. C. The charge against the accused is, therefore, groundless and the accused is discharged under section 253 (2) Cr. P. C.". It has also been observed by the learned Additional Sessions . "After sometime the case against the accused persons Samad (1) and others under section 394, P. P. C. was finally disposed of after taking evidence and the accused persons were honourably acquitted".

5. In this state of things, it is quite apparent that as a result of the judicial enquiry consequent upon the Naraji petition, there was some ground for prosecuting the accused persons under section 394, of the Penal. Code. Although as a result of further enquiry or trial after taking evidence in the usual manner, the accused persons were let off under section 394`. Of the Penal Code, yet it can hardly be suggested that the informant, namely, the present petitioner, gave any false infor mation knowing that there was any just or lawful ground for such proceeding or charge against that person. A prima facie case having been made out consistent with the Naraji petition filed by the petitioner and there being a regular trial with respect to the accused persons under section 394 of the Penal Code, it is difficult to hold that the informant or the present petitioner, did not believe in good faith that an offence under section 394 of the Penal Code has actually been committed by the accused persons. This position as found as a result of judicial enquiry and trial of the accused persons, leads me to think that there was no material in fact or otherwise which would be enough for the purpose of convicting the present petitioner under section 211 of the Penal Code. It will be useless in such a case to allow the police or the prosecution to proceed with the proceeding under section 211 of the Penal Code against the present petitioner who should be deemed to have lodged the information in question before the police authorities in good faith. If such a proceeding is allowed to continue, there will be unnecessary waste of time and money on both sides. In this view of the matter, I am inclined to think that there is good sub stance in the contention of the learned Advocate for the peti tioner that on ,merits this proceeding under section 211 of the Penal Code is liable to be quashed.

6. In the result, this rule is made absolute and the impugned order dated 14‑9‑59 is set aside and the proceedings under section 211 of the Penal Code is quashed. K. B. /A. H. Proceedings quashed.