' The petitioner, Asif Jan, who is a Sub-Inspector of Police No,D/21, had filed a private complaint under section 500/501/502, P.P.C., against respondents Nos.1 and 2, on the ground that respondent No,2, who is Editor of Weekly Newspaper "Tarjaman/Inkishaf", D.I. Khan, on the instigation of respondent No,1, published some defamatory material against him in Weekly Tarjaman with a view to damage his reputation. This complaint was filed by the petitioner himself through the Public Prosecutor, D.I. Khan.
2. The complaint was contested by the respondents chiefly on the ground that proper sanction for prosecution has not been obtained in terms of section 198-A, Cr.P.C. The learned Additional Sessions Judge, D.I. Khan, who was seized of the matter did not accept the legal objection, whereafter the respondent moved this Court by way of a Revision Petition. No,11 of 1996 which was dismissed on 2-7-1997 on the assurance given by the learned counsel for the respondent (petitioner herein) to the effect that a separate sanction order for prosecution of the complaint has been solicited from the Secretary to Law Department, Government of N.-W.F.P., Peshawar, and the same would be available within a week's time and will be placed on the record of the case for satisfaction of the petitioners (now respondents).
3. Since, in the instant case, the pivotal point is the compliance of section 198-A, Cr.P.C., therefore, in order to grasp the controversy, the said section, to the extent of its relevancy, is reproduced below:- - "198-A. Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions.--- (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1880) is alleged to have been committed against the President, the Prime Minister, a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister, or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2)..
(3) No complaint under subsection (1) shall be made by the Public Prosecutor except with the previous sanction.
(a)..
(b)
(c) in the case of any public servant employed in connection with the affairs of the Federation, or of a Province, of the Government concerned."
4. Thus, it would be clear to understand that by virtue of clause (c) of subsection (3) to section 198- A, Cr.P.C., in case of any public servant employed in connection with the affairs of the Federation or of a Province, the previous sanction of the Government concerned would be essentially needed.
5. In the instant case, the Solicitor Government of N.-W.F.P., vide Letter No,SLT-3(5)95/6458, dated 27-9-1995 in response to Letter No,51-25, dated 10-9-1995 authorized Public Prosecutor, D.I. Khan to file a complaint in the Court of Sessions Judge. On 16-7-1997, i,e, subsequent to the order of this Court, dated 2-7-1997 wherein assurance regarding the procurement of the sanction from the Secretary, Law Department, Government of N.-W.F.P was given, the Solicitor issued another Letter bearing No,SLT-704-6, dated 16-7-1997. This letter was based on the letter of Home Department Letter No,SO(FI)HD/1-2/82/8656, dated 1-7-1997 which was considered as a sanction by the Government concerned by the Solicitor. However, no sanction by the Secretary, Law Department, Government of N.-W.F.P., was obtained in terms of the assurance given by the petitioner to this Court in the erstwhile revision petition. Thus, the learned Additional Sessions Judge while taking into consideration all the circumstance and assessing the legal status of the Solicitor came to the conclusion that the said letter of the Solicitor cannot be equated with the sanction of the Government and, as such, for want of proper/legal sanction, the complaint of the petitioner was dismissed, vide his order, dated 3-12-1998. The petitioner feeling dissatisfied has filed the instant petition.
6. It may also be observed that the instant petition is also filed by the petitioner in his private capacity and has not been filed by the' learned Public Prosecutor, by the State or by any person authorized by the Government. It is also a noteworthy feature of the case that the State was not made party in this case and in this connection on 18-10-1999 Mr. Sanaullah Khan Gandapur, the learned counsel for the respondents had raised an objection that the State has not been made a party in this case notwithstanding the fact that primarily the State is substantively involved in the matter. The learned counsel for the petitioner had no objection to the impleadment of the State and, as such, the State was transposed as respondent and notice was accordingly issued to it for 1-11-1999 and thenceforth the State was duly represented by the learned State Counsel.
7. The learned counsel appearing on behalf of the petitioner has assailed the judgment of the lower Court by contending that the learned Additional Sessions Judge was not correct in arriving at the conclusion that no proper sanction was obtained by the petitioner for filing of the complaint. He submitted that the letter issued by the Solicitor was sufficient compliance of section 198-A, Cr.P.C.
And the authorization given by the Solicitor cannot be treated as sanction of the Government of N.- W.F.P. He also contended that the assurance given by the petitioner to this Court during the previous revision petition was also complied with when the Solicitor issued the second letter, dated 16-7-1997 and no matter if the sanction of the Secretary, Law Department, Government of N.-W.F.P., could not be obtained.
8. On the contrary, the learned counsel for respondents Nos.1 and 2 has defended the impugned judgment of Additional Sessions Judge and has vehemently argued that the authorization letter issued by the Solicitor can never be considered as a sanction of the Government. The learned counsel went on arguing that the concerned Government would always mean the concerned Secretary which, in the instant case, is the Secretary of Law Department, Government of N.-W.F.P.
And to this effect the assurance was given by the petitioner to the Court that proper sanction from the Secretary of Law Department would be obtained, which he has miserably failed to do.
9. Mr. Muhammad Khan Khakwani, the learned counsel for the State has also not supported the present petition and has categorically stated that in \the instant case the State, or for that matter, the learned Public Prosecutor, or any other Government functionary, has not filed the present application and, as such, the State does not support the present petition. He contended that no private petition under section 561-A, Cr.P.C. Can be filed by the present petitioner in his private capacity and this being a serious legal infirmity in the present petition, it deserves outright dismissal. The learned State Counsel also contended that the letter issued by the Solicitor is by no way compliance of section 198-A, Cr.P.C., as the Solicitor does not figure anywhere in the Cr.P.C. To be a competent person to grant sanction for prosecution in terms of section 198-A, Cr.P.C. Thus, according to the learned State Counsel, the letter of authorization issued to the Public Prosecutor by the Solicitor of Government of N.-W.F.P. Is not a sanction in the legal sense. The learned State Counsel has relied on 1998 PCr.LJ 35 for the purpose of analogy. He has also made a reference to PLD 1997 Pesh. Page 166 and contended that proceeding on the premises of the said judgment, it would not be difficult to conclude that only the nominee by law can initiate the action and no other person who is not specifically authorized by law or unless the powers/functions of such a nominee are delegated to any person duly authorized by law.
10. I have heard the rival arguments of the learned, counsel for the parties and gone through the record. The very complaint was filed on 5-9-1995 and obviously at the time of filing the complaint, sanction of the Government concerned was not obtained and it appears that the Public Prosecutor wrote a Letter No,25 on 10-9-1995 to the Solicitor for obtaining the required sanction and the letter of the P.P. Was responded by the Solicitor through her letter, dated 27-9-1995 giving him the authorization to file a complaint. This is an eloquent indicator which shows that the complaint was filed without obtaining the required sanction, whereas subsection (3) of section 198-A, Cr.P.C., reproduced above, clearly speaks that no complaint under subsection (1) of section 198-A, Cr.P.C.
Shall be made by the Public Prosecutor except with the previous sanction. The words "previous sanction" carries a great significance and it demonstrates that before filing of the complaint, the required sanction shall be obtained by the Public Prosecutor. In other words, the sanction must precede the filing of the complaint. More to it, it is also a significant feature of the case that the Solicitor is not authorized to give sanction, because sanction required by law is that of the Government of the Province concerned of which the servant is an employee. Thus, for a couple of reasons, the instant complaint could not be considered as a legally instituted complaint, Firstly; that no previous sanction was obtained, and Secondly that the authorization of the Solicitor could not be considered as a sanction demanded by law. It is also evident that the petitioner, notwithstanding his assurance given to this Court that he will procure the sanction of the Secretary, Law Department Government of N.-W.F.P., in a week's time, he failed to obtain the sanction.
Therefore, in view of such circumstances, the learned lower Court was perfectly right in holding that proper sanction has not been obtained.
11. Now adverting to the competency of the instant petition, I may observe that this petition under section 561-A, Cr.P.C. Is again filed by the petitioner in his private capacity. Since it is the requirement of law that no complaint can appropriately be filed by any public servant except by the P.P. After obtaining the due sanction from the Government concerned, therefore, the filing of the instant petition in a private capacity would equally be incompetent unless it is filed by any Government functionary authorized to do. It can never be accepted by the faculty of mind that if at the first instance the employee concerned is required by law to file a complaint, how he would be allowed to file a petition under section 561-A, Cr.P.C. In his private capacity. Moreover, the State has flatly refused to support the instant petition and such a refusal would cast a very serious affect upon the maintainability of the instant petition. It was primarily a privilege of the State which could move this Court, if felt dissatisfied with the order of the dismissal of the complaint.
12. In view of the above discussion, I feel obliged to hold that neither the complaint was filed in accordance with law in the lower Court, nor the instant petition is competent.
13. The result of the above discussion is that the petition being devoid of force is dismissed.