2009 PLP 505 (YLR)

DR. RANA MUHAMMAD SHAMIM, J.

This Criminal Miscel laneous Application is directed against the impugned order dated 10-10-2008 passed by learned Ex-Officio Justice of Peace/IVth Additional Sessions Judge, Hyderabad, whereby the learned Justice of peace directed the police to record the statement of complainant/respondent No.3 and if cognizable offence is made out then respondent No.2 should lodge the F.I.R. accordingly. Learned counsel for applicants contends that both the applicants are public servants i.e. E.D.O. Revenue and D.D.O. Revenue and at the best, the case against them if any is of misconduct and exceeding of their powers for the forum of registration of complaint and investigation is different as provided under section 52 of the Prevention of Corruption Act, 1947. He also submits that prior to registration of Criminal case against the applicants, they being public servants, a sanction for prosecution from competent authority is mandatory as provided under section 197, Cr.P.C. hence the impugned order passed by learned Justice of Peace/IVth Additional Sessions Judge is not tenable. He further contends that learned Justice of peace/IVth Additional Sessions Judge has made error in passing the said order and local police has no jurisdiction to take cognizance in the case. He submits that in such circumstances, the impugned order is illegal and the same be set aside. Learned State counsel has not controverted the arguments of learned counsel for applicants and concedes that the impugned order be set aside in circumstances. I have heard learned counsel for applicants, learned State counsel and perused the impugned order and material available on record. After perusing the application under section 22-A & B, Cr.P.C. moved by respondent No.3, it has been specifically mentioned that applicants Nos.1 and 2 become a party against whom the respondent No.3 levelled specific allegations for attempt to commit murder, extending threats of dire consequences and tress-passing etc. into the land of respondent No.3 which prima facie convicted the judicial mind of the learned Additional Sessions Judge to give direction to the respondent No.2 to record statement of respondent No.3. While passing such order the learned trial Judge referred a decided case of this Court titled Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge (East) at Karachi and 2 others (2007 PCr.LJ 909). It is further directed if on the basis of that statement of respondent No.3, if any cognizable offence is made out, the F.I.R. shall be registered. It is further clarified that until and unless the tangible material becomes available, the applicant will not be arrested. The learned counsel is unable to point out any illegality or material irregularity in the impugned order. The sanction for registration of criminal case and prosecution thereto against public servant is not required as section 197, Cr.P.C. has struck down by the Honourable Supreme Court of Pakistan as the said provisions of law have been declared repugnant to the injunction of Islam. While saying so I am fortified by two judgments in a case of Federation of Pakistan v. Zafar Awan reported in PLD 1992 SC 72 and in a case of Muhammad Nawaz v. The State reported in 1994 MLD 1102. In view of the above, the impugned order dated 1.0-10-2008 passed by the learned Justice of Peace/IVth Additional Sessions Judge, Hyderabad is upheld. Consequently this Criminal Miscellaneous Application having no merits/consideration is hereby dismissed along with listed application. The respondent No.3 is required to appear before the S.H.O. concerned who shall record his statement. In case from the contents of his statement if cognizable offence is made out, S.H.O. shall register an F.I.R. accordingly. In case a distinct offence of misconduct is also made out against the applicants, the same may also be referred to concerned Anti Corruption Establishment to register a case against them as well. It is also clarified that if subsequently the case is proved false after conducting investigation, the action be taken against the complainant/respondent No.3 in accordance with law. N.H.Q./I-28/K Application dismissed.