IJAZ ANWAR, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Atta Muhammad Deshani seeks quashment of FIR No.25 dated 04.01.2015 registered under sections 153-A/295-A/298, P.P.C. at Police Station Hattar, District Haripur.
2. Brief facts of the case are that the petitioner is a religious scholar and Provincial President of Ahl- e-Sunnat-Wal-Jamat. On 13.4.2014, he was invited as Chief Guest in Jamia Masjid Bilal, Gullo Bandi, Hattar to address the Sunni Workers Convention and as per report of the Security Branch the petitioner deliberately and maliciously in his speech called the Ahl-e-Tashee as Non-Muslims and outraged religious feelings and promoted sectarian enmity between two sects. On such report of the Security Branch the above referred FIR was registered.
3. Arguments heard and record perused.
4. The main point raised in the instant petition is that the FIR registered under sections 153-A/295- A/298, P.P.C. is required to be quashed as it was registered in violation of section 196 of the Criminal Procedure Code. In order to decide this controversy it would be advantageous to reproduce the said section, which reads as under:- "196. Prosecution for offences against the State. No Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Pakistan Penal Code (except section 127), or punishable under section 108A, or section 153A, or section 294A, or section 295A 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."
5. We examined the case law referred to by learned counsel for the petitioner and also searched precedent law on the point. Reference can be made to 2012 PCr.LJ 923, 1990 PCr.LJ 1708, PLD 2005 Lahore 631, 2000 PCr.LJ 902, 2014 PCr.LJ 1256.
The case law which we searched on this point is PLD 1969 Lah. 434, 1979 PCr.LJ 758(2), 1976 PCr.LJ 184, PLD 1978 Lah. 1032, 1992 PCr.LJ 2346, 1988 PCr.LJ 992, 1997 PCr.LJ 836, AIR 1948 PC 82-11.
6. In some of the above judgments it was held that section 196, Cr.P.C. does not debar the police to register or investigate the case in order to come to the truth and that the provisions of section 196, Cr.P.C. would come into play when the Court takes cognizance of the offence, because the function of a Court would commence only when complete challan sent to it for trial of the accused, while in some of the cases it was held that case against the accused having been registered without the authority of Central or Provincial Government or of some officer empowered in this behalf, is violative of section 196 of the Cr.P.C. and FIR was quashed.
7. We laid our hands on certain judgments wherein section 196, Cr.P.C. has been interpreted in its true intent. In the case of "Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others" (PLD 1994 Supreme Court 281), it was held that:- "6. So far as the question of registration of the case without prior sanction of the competent authority is concerned, in the case of Emperor v. Khawaja Nazir Ahmad (AIR 1955 Privy Council 18) the law laid own was that the prohibition contained, in section 197, Cr. P. C. against a prosecution without the necessary sanction is against the action of taking of cognizance by the Court. It does not prevent, preclude or otherwise interfere with the power of the police in the matter of registration of the case and the investigation thereof The sanction required under section 197, Cr.P.C. is even otherwise not required in view of decision in the case of Zafar Awan PLD 1992 SC 72."
8. In the case of "Mian Yasin Watoo and others v. Government of Punjab and others" (1997 PCr.LJ 836), the Division Bench of Honourable Lahore High Court held that:- "It is evident from the above provisions that no Court shall take cognizance of the offences mentioned in the section unless a complaint in this behalf is made by the Central Government or the Provincial Government concerned. As clearly pointed out above, the case is being thoroughly investigated by the police and the stage of trial of the accused has not yet come. There is, therefore, nothing in section 196, Cr.P.C. to debar the police to investigate this case in order to come to the truth."
In the case of "Muhammad Khan v. The Government of West Pakistan and others" (PLD 1960 Lahore 434), the Hon'ble Chief Justice Kayani authored the judgment and held that:- "4. On the language of section 196 the argument is attractive, because if the Magistrate is allowed to take cognizance of an offence, then he should have power to take evidence for the purpose of ascertaining who the offenders are. The object of the restriction, however, is to enable the Government to decide whether an offence of the kind mentioned in section 196 should be tried in Court or whether it would be more in the interest of the people and the administration to suppress the trial, and since an offence assumes importance not only from its own nature but also from the personality of the offender, it should be in the power of Government to decide whether any particular person should be prosecuted. For, in order to obtain the sanction of Government a complainant may apply that sanction to the prosecution of certain unimportant persons may he granted, and when the sanction is granted the complainant may, during the trial, suggest to the Magistrate the names of certain other culprits whose disclosure at the initial stage might have caused the Government to decide in favour of withholding sanction. We cannot in this context divorce the personality of the offender from the offence committee, and, therefore, hold that section 196 cannot be invoked. After the acquittal of the other accused, it will be particularly improper to direct the prosecution of Nazar Husain Shah."
In the case of "Qaisar Raza v. The State" (1979 PCr.LJ 758), it was held that:- "From the perusal of the record it appears that the SHO has registered FIR crime number of which 78 of 1976 has also been given but at the bottom of the FIR one sentence is added to the effect that it is indisputable that this has been treated as FIR and thereafter the applicant was arrested by the SHO and challan was presented in the Court. The requirement of section 196, Cr. P.C. is that in such a case a complaint is to be filed before the Court . of the competent jurisdiction after obtaining the sanction from the Central Government or Provincial Government. This obviously has not been done in the instant case and it does not appear from the record that SHO had obtained the sanction or was authorized by the competent authority to file a complaint. The learned counsel for the applicant has cited before me the case of Maulana Dost Muhammad v. The State
(1) decided by this Court in which for non-compliance of provisions of section 196 proceeding initiated for an offence under section 124-A, P.P.C. were quashed by the Court on the ground that proper procedure laid down under the law under section 196, Cr.P.C. was not followed. The provisions of section 196, Cr. P. C. are very clear and whole case law has been discussed in detail in the ruling cited by the learned counsel and the learned Assistant Advocate General appearing for the State concedes that proper procedure has not been followed hence I quash the proceedings pending in the Court of the Sessions Judge, Kahirpur arising from Crime No. 78 of 1976 of Police Station, Town Khairpur. However, it is left open that the concerned authorities, if they are so advised, may proceed against the petitioner but in strict accordance with the orders of the Provincial Government or the Central Government and requirements of the section 196, Cr.P.C."
In the case of Maulana Dost Muhammad v. The State" (1976 PCr.LJ 184), the learned Single Bench of the Karachi High Court struck down the proceedings before the Magistrate, however, observed as under:- "14. I would however, make it abundantly clear that since this order not one on merits of the case, it would still be open to the concerned authorities to proceed against the petitioner but only in accordance with the orders of the Provincial Government and the requirements of section 196, Cr.
P. C. Code."
Similar view was expressed in case of "Major General Fazal-i-Raziq Chairman, WAPDA, Lahore v. Ch. Riaz Ahmad and another" (PLD 1978 Lahore 1082).
In the cases of "Fayyaz Ahmad v. The State and others" (2003 YLR 3137), "Syed Nawaz Hussain and others v. The State and others" (2014 PCr.LJ 1256), (2012 GBLR 137), "Bashir. Ahmed v. The State"
(2000 PCr.LJ 902), (PLD 2017 Islamabad 64), (2010 PCr.LJ 1809), (2016 YLR 1279), the FIR was quashed on account of non-compliance of provisions of section 196, Cr.P.C.
9. On examining the case law and section 196, Cr.P.C., it follows that the police have to perform the functions specifically assigned to them without any outside interference under Chapter XIV, Part V of the Criminal Procedure Code. The functions of the Court would commence only when a complete Challan is sent to it for trial of the accused. In the instant case, as we gathered from section 196, Cr.P.C., it is only after submission of Challan that the Court takes cognizance of the case and thus, the proceedings taken prior to this, cannot be held to be violative of section 196, Cr.P.C. We when examined the record, find that in the instant case the SHO concerned has submitted Challan under section 173, Cr.P.C. in routine without submitting it in the shape of complaint or seeking sanction of the Central Government, Provincial Government or any officer authorized by it thus, the proceedings to that extent are quashed and the trial Court cannot take cognizance on such defective Challan.
10. Since the proceedings before the trial Court have been quashed on legal ground, therefore, we leave it open to the concerned authorities that, if they are so advised, may proceed against the petitioner, but strictly in accordance with the orders of the Provincial Government or the Central Government, as required under section 196, Cr.P.C. This petition is allowed and disposed of in above terms.