1991 PLP 173 (MLD)

Date of hearing: 16th October, 1990. The facts of this revision are that one Mooso, son of Saifal lodged complaint under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and under sections L48, 149, 448, 451, 452 and 436, P.P.C. in the Court of Sessions Judge, Sanghar against respondents Nos.2 and 3 and others. The complaint was forwarded to Civil Judge and F.C.M., Sanghar for preliminary enquiry who examined witnesses and submitted his report to the learned Sessions Judge, Sanghar and according to his opinion prima facie case under section 17 of the said Ordinance and sections 143, 149, 448, 451, 452, 220 and 436, P.P.C. is made out against accused including respondents Nos.2 and

3. Learned Sessions Judge by order, dated Ist November, 1989 took the cognizance against private persons and issued bailable warrants.

2. The respondents Nos.2 and 3, Haji Aziz Jehanzeb and Ali Nawaz, are employees in the Police Department, therefore, learned Sessions Judge observed in his order that sanction under section 197, Cr.P.C. for their prosecution is necessary. The petitioner being dissatisfied with this order has filed this revision.

3. Mr. Muhammad Ismail H. Memon, counsel for the petitioner argued that both the respondents though public employees are removable from their office by S.P. without sanction of the Provincial Government. He has referred to the cases reported in 1970 S C M R 726, P I. D 1989 F S C 84 and A I R 1964 S C of India

769. He has also relied on Notification, dated 12-6-1988 of Government of Sindh, Home Department, therefore, sanction is not necessary.

4. Mr. Nawab Mirza, counsel appearing for the respondents submitted that Government savants have got protection and cognizance cannot be taken without the sanction as required under section 197, Cr.P.C. Mr. Abdul Ghafoor Mangi, learned Assistant Advocate-General, Sindh has supported this revision and submitted that there is no embargo for taking cognizance against the respondents and their case is not covered under section 197, Cr.P.C.

5. Complaint was filed under section 17 of the said Ordinance and other sections of P.P.C. Statements of the witnesses were recorded during the preliminary enquiry: They all have supported. The Civil Judge and F.C.M. who conducted the preliminary enquiry recommended that prima facie case has been made out. The learned Sessions Judge in impugned order has stated as under:-- "The question is whether prima facie case is made out against the accused and the offence is triable under section 436, P.P.C. by the Court of Session. In this case there are two police officers involved of which one is Head Constable. There is also strong allegation against them:' He has further observed in the order that Court is of the view that:- "there is no bar of taking cognizance against Miroo, Allo, Saleh, Gul and Khamiso. As regards two police servants, complainant should apply for sanction or to make out the case in the police case, where there are number of documents, are also to be examined and then, there is no bar, for the complainant to file fresh complaint, for taking legal cognizance, on the basis of the statements which are recorded during preliminary enquiry, against other accused."

6. The case hinges on the legal point whether respondents Nos.2 and 3 are removable by the Provincial Government and are entitled to protection as envisaged in. section 197, Cr.P.C. The notification of Home Department, Government of Sindh, dated 12th June, 1988 is clear. In the schedule the proper authority to award punishment has been mentioned. The cases of both the respondents come under category No.3 for which S.P. is competent to award punishment. The sanction can only be required when competent authority for removal is Provincial Government. In my view their cases are not covered under section 197, Cr.P.C. Therefore, sanction for taking cognizance is not necessary. The authorities cited by Mr. Muhammad Ismail H.Memon, are very much relevant for the disposal of this revision. In reported case (1970 S C M R 726) it has been observed that such findings can be based when evidence is recorded. I am of the view that there is no bar in taking cognizance against respondents Nos.2 and 3 without sanction. However, learned Sessions Judge has refused to take cognizance on the legal point. He has not dealt with the case on merits. The impugned order, dated 21-11-1989 is set aside. The case is remanded back to the learned Sessions Judge, Sanghar with directions that he should apply his mind and make proper order according to law. N.H.Q./560/F.S.C. Case remanded.