LAL JAN KHATTAK, J. Through this judgment, we shall also decide W.P. No.1297-P of 2021 titled "Muhammad Safdar v. Inspector General of Police, Khyber Pakhtunkhwa and others" and Cr. M.
(B.B.A.) No.809-A of 2021 titled "Muhammad Safdar v. The State and others" as common grievance exists in all the three petitions. In Writ Petition No.2843-P of 2021, titled "Captain (Retd.) Muhammad Safdar v. Inspector General of Police and others", petitioner has sought quashment of the FIR registered against him at Police Station East, Peshawar bearing No.87 dated 09.02.2021 under sections 121, 121-A, 124-A, 131, 153, 505, 511, P.P.C. In W.P. No.1297-P of 2021, petitioner has sought directions to the respondents to provide him the details of cases registered against him within their jurisdiction whereas in Cr. M. (BBA) No.809-P of 2021 he has applied for bail before arrest in the FIR subject matter of Writ Petition No.2843-P of 2021.
2. First we take up the writ petition filed by the petitioner for quashment of the FIR according to which on 09.02.2021 complainant of the case, namely, Imran Nawaz Alam Khan, SHO of Police Station East, Peshawar, while on routine patrolling, came to know through social media that the petitioner, after attending his case at Peshawar High Court, Peshawar, held a press conference in the premises of High Court wherein he instigated the public against the Government and the Armed Forces. As per the FIR, petitioner criticized the government policies with intent to lower its position down and also attempted to incite members of the Armed Forces against its leadership.
Being aggrieved of the registration of the case FIR against him, petitioner has sought its quashment through the instant petition.
3. Arguments heard and record gone through.
4. Though some allegations have been levelled against the petitioner by the complainant in the questioned FIR but pertinent aspect of the case is that per section 196 of the Code of Criminal Procedure, 1898, no court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code or punishable under section 108-A or section 153-A or section 505 of the Code unless upon a complaint made by the order of or under the authority from the Federal Government or the Provincial Government concerned or by some officer empowered in this behalf by either of the two Governments. It is worth to mention that sections 121, 121-A, 124-A, with which the petitioner is charged fall under Chapter VI of the Pakistan Penal Code, 1898 and as such per section 196 of Cr.P.C., the complainant was not competent to lodge the FIR against the petitioner as nothing was produced before the court to show that he was ever authorized by either of the two Governments to book the petitioner under the ibid sections of law.
5. Apart from the above legal lacuna in the case, another striking aspect of the case which shows mala fide on the part of the complainant to register the case against the petitioner is the fact that without getting any forensic test of the video viraled on the social media through which he came to know about indulgence of the petitioner in the so-called anti-State activities he registered the case against him and even uptill now no report from the FSL was produced before the court to show that no editing was found in the video clip which the complainant had downloaded from the Internet regarding the petitioner's press talks expressing his venom against the government and others.
6. In addition to the above, from bare perusal of the allegations contained in the FIR, no offence, as alleged, appears to have been made out. Case record shows that the petitioner is a politician and has remained a member of Parliament. He also is a staunch critic of the present government and to criticize the government's policies, which according to him are not good for the citizen, is his right and in doing so, if he comes hard on the government of the day then his such act on no count could be equated with waging a war against the country.
7. Furthermore, according to the record, petitioner talked to the media persons and that too after attending his case before the High Court. How could he wage war against Pakistan when the prosecution has not collected any material till date showing his such designs. Neither any pamphlet, literature, arms and ammunition were taken into possession from him or on his pointing out from somewhere nor there is any record to believe that he ever had arranged any secret meeting with mutineers urging them to stand up against the government of the day.
Booking a citizen, particularly a political opponent, for waging war against his country is not an ordinary charge which shall not be levelled whimsically and in a casual manner and that is why section 196 of Cr.P.C. has placed an embargo that no court shall take cognizance of such offence unless upon the complaint of the Federal Government, or the Provincial Government or some officer empowered in this behalf by either of the two governments which is not the case in hand as nothing was produced by the respondents before the court that complainant of the case was empowered to register the case against the petitioner.
8. For what has been discussed above, Writ Petition No.2843-P of 2021 is allowed and consequently FIR bearing No.87 dated 09.02.2021 under sections 121, 121-A, 124-A, 131, 153, 505 and 511, P.P.C. of Police Station East Cantt., Peshawar registered against the petitioner, being abuse process of law, stands quashed.
9. On quashment of the FIR, Cr. M. B.B.A. No.809-P of 2021 titled "Muhammad Safdar v. The State and others" has become infructuous which is dismissed accordingly.
10. So far as W.P. No.1297-P of 2021 is concerned, same is disposed of in terms that the respondents shall provide the petitioner details regarding the number of cases, if any, registered against him in the Province in case he approaches them.