SYED KHURSHEED HAIDER RIZVI, J.--- Appellant was tried by the Judge, Special Court, Suppression of Terrorist Activities, Hyderabad on the charge under section 121-A, P.P.C. And section 13 of the Prevention of Anti-National Activities Act, 1974. Appellant was acquitted on the charge under section 13 of the Prevention of Anti-National Activities Act while he was convicted for the offence punishable under section 121-A, P.P.C. And sentenced to R.I. For seven years and to pay a fine of Rs,10,000 or in default of payment of fine to further undergo R.I. For six months.
2. According to the prosecution, Inspector Karamat Hussain was posted as S.H.O. At Police Station Thatta on 20-9-1992 when he received orders from S.P. And joint investigation team that a case be registered against the appellant Moin Alam. He was informed that appellant had gone to India and received training. On the same day, he arrested the appellant and registered a case against him.
According to the prosecution, appellant was the General Secretary of Sindh People's Students Federation and that in the year 1990 on the occasion of death anniversary of late Mr. Zulfikar All Bhutto, he alongwith his companions forcibly took away a bus belonging to the Government.
Appellant alongwith other students of Thatta College had taken out a procession and burnt some vehicles of N.L.C. In the year 1990. According to the prosecution, appellant had gone to India on 5- 9-1989 for receiving training for using klashnikov and hand grenades etc. It is further alleged that he was also a member of `A.Z.O.' According to prosecution, he used to participate in all the activities and used to take part in such activities in order to overthrow the lawful Government. After registration of the case and after usual investigation the appellant was sent up before the Court.
3. Charge under section 121-A, P.P.C. Read with section 13 of Prevention of Anti-National Activities Act, 1974 was framed against the appellant to which he pleaded not guilty.
4. In his detailed statement, the appellant denied the allegations. He stated that he has been falsely implicated by the police. According to the appellant, he was arrested on 29-8-1992 from A.D.B.P. WER Branch where he was on duty. He was taken away by the Police and Law Enforcing Agency. He was tortured and was blind-folded and was detained illegally by the Law Enforcing Agency at Makli. According to him, he was serving as `Amilain Zakat' in Zakat and Ushr Department and that he was always present on his duty. According to him, his brother filed a Writ Petition No,D- 2157 in the High Court against his illegal detention and that in order to shield their own guilt of maltreating and torture, at the direction of S.P., Thatta he was falsely involved in this case.
Appellant made similar statement on oath in disproof of the charge. He also examined three witnesses namely (1) Nizamuddin, Manager, A.D.B.P. WER Branch, Thatta, (2) Muhammad Amin, Junior Clerk, D.C. Office Thatta, Zakat and Ushar Branch and (3) Haji Khan, Officer National Bank of Pakistan, Makli Branch, Thatta.
5. Prosecution examined three witnesses namely A.S.I. Muhammad Sharif, P.C. Abdul Malik and Karamat Hussain, S.H.O., Police Station Thatta to prove the case against the appellant.
6. Learned counsel appearing for the appellant contended that the trial Court had no jurisdiction to proceed with the trial of the appellant as under section 1%, Cr.P.C. No Court can take cognizance of any offence punishable under section 121-A, P.P.C. Without the complaint made by order of or under the authority from the Federal Government or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments.
7. In this case the charge under section 121-A, P.P.C. Had been framed against the appellant and that for the same offence he has been convicted.
8. It would be useful to reproduce here section 196, Cr.P.C. Which reads as under:-- "196. 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 Code, unless upon complaint made by order of, or under authority from the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments."
9. Learned trial Court has dealt with the above objection about the jurisdiction of the Court for the trial of the appellant under section 121-A, P.P.C. And took the view as under:- "In reply to the above contention the learned S.P.P. Has submitted that since a proper sanction as required under section 196, Cr.P.C. Was given by the District Magistrate, Thatta, therefore, no complaint in this case was necessary. He has submitted that the report submitted by the police against the accused upon which cognizance was taken by this Court can be treated as a complaint. He has referred me to a note under section 1% in the Criminal Procedure Code, Volume I by Shaukat Mahmood wherein it has been said that 'a letter embodying the sanction may itself be treated as a complaint and, at any rate, the want of a complaint in such circumstances is only an irregularity curable under section 537'.
' I have considered the above submission and, in my view, since there between 'sanction' and 'complaint'. According to the dictionary meaning the sanction may itself be treated as a complaint because there is difference
10. The learned Judge has formed a wrong view that a letter embodying complaint. At any rate, want of complaint in the present circumstances was prior sanction given by the District Magistrate, Thatta, and the submitted by the police prima facie disclosed offence alleged against the accused, either of these documents can be considered as a at the most would be an irregularity which in my humble view cannot affect the proceedings taken against the accused and, in any event, such an irregularity would be curable under section 537, Cr.P.C." word 'sanction' is defined as 'motive for obedience to any moral or religious law, a penalty or reward expressly attached to non- observance or observance of a law or treaty ..., the act of ratifying, or giving authority, confirmation, support, permission, countenance, to give validity to, to authorise (Chambers Dictionary New Edition); penalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations (Black's Law Dictionary, Sixth Edition). The expression 'complaint' is defined as 'a complaining, an expression of grief and dissatisfaction,... a representation of pains or injuries, a finding fault, the thing complained of, a grievance ...'
(Chambers Dictionary New Edition); `... Charge, preferred before a Magistrate having jurisdiction, that a person named has committed a specified offence, with an offer to prove the fact, to the end that a prosecution may be instituted ....' (Black's Law Dictionary, Sixth Edition). Under clause (h) to section 4, Cr.P.C. Expression 'complaint' has been defined as under:-- "(h) 'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."
11. Furthermore, the omission of filing of complaint in terms of section 196, Cr.P.C. Is not an irregularity curable under section 537, Cr.P.C. But an illegality, in that no trial of any offender can even commence before any Court without such complaint as no Court has jurisdiction to take cognizance of such offence against any offender without such complaint. It is pertinent to note that in the letter treated as complaint by trial Court which is Exh.9 even there is no mention of any sanction of the offence punishable under section 121-A, P.P.C.
12. We are, therefore, of the view that the trial of the appellant has not been held under section 121- A, P.P.C. In accordance with the law and that the trial Court had no jurisdiction to proceed with the trial of the appellant for the offence punishable under section 121-A, P.P.C.
13. Another submission of the learned counsel for the appellant is that there is no evidence against the appellant for connecting him with the crime.
14. We have examined the evidence of the witnesses produced by the prosecution to prove the allegations against the appellant very minutely and we find that there is no iota of evidence to show that any of the witnesses is himself witness of any of the allegations levelled against the appellant. Whatever they have stated is hearsay evidence. P.W. Muhammad Sharif who is an A.S.I.
And was posted at Thatta Police Station in the year 1989 has stated:-- "he used to terrorise people; and in my presence he told his friends that since he had received training in India he would, at the call of `A.Z.O.', overthrow the lawful Government and even go to the extent of killing persons holding high rank and damaging the Government property."
' We ignore this statement of the above witness because the statement, if any, made by the appellant was made before a police official which is inadmissible in evidence.
For what we have said above, we had acquitted the appellant by our short order, dated 3.5-1993.