1. ' This is an application under section 561-A, Cr.P.C. For the quashment of proceedings pending against the applicants under sections 120-B, 121 and 124, P.P.C. In Case No,563 of 1988 (State v. Abdul Jabbar and others) before the learned IInd Additional Sessions Judge, Karachi, Central.
2. ' The brief facts giving rise to the prosecution case are that on 30-7-1980 Major Tufail of D.M.LA.
3. Headquarter Karachi, lodged a report at Police Station, North Nazimabad, Karachi under sections 100-B, 121 and 124-A, P.P.C. Alleging therein that the applicant/accused alongwith co-accused had committed an offence of subversive activities against the Government of Pakistan, spread hatred and dissatisfaction amongst the people and that pamphlets containing destructive material were recovered from them.
4. ' After necessary investigation, the case was sent up before the Special Military Court and the co- accused were convicted, while the present applicants were concerned, it was ordered that they should be tried before the Civil Court under P.P.C. And the Martial Law Regulations applied against them were withdrawn.
5. ' That on 19-1-1986, the applicants were sent up before the Court and ultimately the case was transferred to the Court of learned IInd Additional Sessions Judge, Karachi Central. On 7-1-1987, an application under section 265-K was moved on behalf of the applicants but the same was rejected on 28-4-1988. On 17-8-1989 another application was moved before the learned trial Judge for return of the prosecution case for want of jurisdiction as the case was exclusively triable by Special Court on which the learned trial Judge was pleased to make a reference to the learned Sessions Judge, Karachi, Central. The learned Sessions Judge, Karachi, Central examined the legal position and came to the conclusion that since the case was of 1980, and was already pending before the ordinary Court, it was not necessary to send the same to the Special Court vide order, dated 4-9- 1989.
6. ' I have heard Mr. Rashid A. Rizvi, learned counsel appearing for the applicants, Mr. Wakil Ahmed Qureshi, learned counsel appearing for the State and have gone through the record.
7. It has been contended by Mr. Rashid A. Rizvi, learned counsel appearing for the applicants that there was no sanction from the Provincial Government or Central Government to prosecute the applicants, as envisaged by sections 196 and 196-A, Cr.P.C. And therefore, the taking of cognizance against the applicants was illegal and without jurisdiction. It was further contended that the proceedings were initiated against the applicants in the year 1980 and they were sent up before the ordinary Court in the year 1986, but not a single witness has been examined and, therefore, the proceedings were an abuse of the process of the Court. It was further contended that offence under section 124-A was of non-cognizable offence and the Court could not take cognizance of the same except upon complaint made by competent authority. In support of his contentions, learned counsel has relied upon:--
(1) 1976 P Cr. L J 184, (2) 1979 P Cr. L J 758 and (3) 1988 P Cr. L J 992.
8. ' Mr. Wakil Ahmed Qureshi, learned counsel appearing for the State has contended that in view of the above legal position the proceedings were liable to be quashed.
9. ' I have considered the contentions of the learned counsel. It is an admitted position that the proceedings were started against the applicants in the year 1980 and the case was sent up before the Special Military Court. That the co-accused were convicted by the Special Military Court but as far as the present applicants were concerned, it was ordered that they should be tried before the Civil Court and, therefore, the challan was submitted before the Court on 19-1-1986. That the case has made absolutely no progress and not a single witness has been examined till today.
10. ' Adverting to the legal objection raised by Mr. Rashid A. Rizvi, learned counsel appearing for the applicants, it will be appropriate to refer to sections 1% and 196-A, Cr.P.C. Which read as follows:-- "Section 196. Prosecution for offences against the State.-- No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127) or punishable under section 108-A or section 153-A or section 294-A or section 295-A or section 505 of the same Court unless upon complaint made by order of, or under authority from, the Central Government or Provincial Government, or some officer empowered in this behalf by either of the two Governments."
11. ' Section 196-A. Prosecution for certain classes of criminal conspiracy.--No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120-B of the Pakistan Penal Code
(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means or an offence to which the provisions of section 196 apply, unless upon complaint made by order 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, or
(2) in a case where the object of the conspiracy is to commit any noncognziable offence, or a cognizable offence, or cognizable offence not punishable with death or (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, unless the Provincial Government, or a District Magistrate empowered in this behalf by the Provincial Government, has by order in writing, consented to the initiation of the proceedings: ' Provided that where the criminal conspiracy is one to which the provisions of subsection (4) of section 195 apply no such consent shall be necessary.
12. ' The bare reading of sections 196 and 196-A clearly shows that offences under sections 121 and 124 were non-cognizable and cognizance for the offence under sections 120-B, 121 and 124 could only be taken upon a complaint made by order or under authority from the Central Government or the Provincial Government, or some officer empowered in this behalf by either of the two Governments.
13. ' Word, 'complaint' has been defined under section 4(h), Cr.P.C. Which reads as follows:-- "Complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person whether known or unknown has committed an offence but it does not include the report of Police Officer."
14. ' In the case of Maulana Dost Muhammad v. The State 1976 P Cr. L J 184; it was observed by this Court that:-- "In fact section 124-A, P.P.C. Being a non-cognizable offence, investigation by police cannot be done. On the other hand section 196, Cr.P.C. Imposes a specific bar to the taking of cognizance unless it be on a complaint and at the instance of the prescribed authority and by a prescribed officer. The non-compliance in the initiation of proceedings goes to the root of the entire matter. It is needless to restate that when law requires a particular act to be done in a particular manner, all other ways of performance are forbidden."
15. ' It was further observed that on consideration of all aspects of the above case I am of the considered view that the proper procedure under the law had not been followed, that:- "Authorised Officer had to file complaint in the case and submission of the charge-sheet or the drawing up of First Information Report was illegal. The District Magistrate had taken the cognizance of the case illegally." ' and the proceedings pending against the applicant were quashed. However, it was further observed that since the above order was 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 requirement of section 196, Cr.P.C.
2. In the case of Qaisar Raza v. The State 1979 P Cr. L J 758; while relying upon the case of Maulana Dost Muhammad v. The State; that:-- "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 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 S.H.O. Had obtained the sanction or was authorised by the competent authority to file a complaint." ' and the proceedings were quashed.
3. In the case of Muhammad Ishaq and others v. The State 1988 P Cr. L J 992 it was observed by this Court that:-- "Offence under section 124-A, P.P.C. Is non-cognizable and since the investigation was carried on without sanction of the prescribed Government as provided under section 196, Cr.P.C. As such the same was nullity in the eye of law and cannot be the basis for report. That due to non-compliance of the provisions of section 196, Cr.P.C. The entire proceedings including the taking of cognizance by the Court is ab initio, void and illegal." ' and the proceedings were quashed.
16. In view of the above factual as well as legal position I am of the considered view that investigation carried on by the police, submitting of challan before the Court and taking of cognizance by the Court in the present case were illegal and without jurisdiction. I, therefore, allow this quashment application and quash the proceedings pending against the applicants under sections 120-B, 121 and 124, P.P.C. In Case No, 563 of 1988 (State v. Abdul Jabbar Khattak and others) before the learned IInd Additional Sessions Judge, Karachi Central.
17. ' Although the proceedings have been quashed on a legal ground, yet since the applicants have been dragged in Court right from 1980, and not a single witness has been examined before the learned IInd Additional Sessions Judge where the proceedings are pending since 1986, and the applicants have suffered agony of protracted trial for nearly about 10 years, I do not feel it proper to leave it open to the concerned authorities to proceed against the applicants after complying with the provisions of law.