' A case F.I.R. No,43 of 1996 dated 26-9-1996 under section 295=A, P.P.C. Read with section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, was registered against the appellant at the instance of one Noor Ahmad, Sub-Inspector at Police Station City Bahawalnagar. After usual investigation, he was cliallaned to face the trial before the learned Judge, Special Court-II, Anti- Terrorism, Bahawalpur. The appellant was consequently convicted under section 295-A; P.P.C. And was sentenced to seven years' R.I. With a fine of Rs,10,000 and to undergo for a further period of one year's R.I. In case of default in the payment of fine vide judgment, dated 6-2-1998 passed by the learned Special Court II, Anti-Terrorism, Bahawalpur.
2. The learned counsel for the appellant argued that the entire proceedings before the learned Special Court, Anti-Terrorism,. Bahawalpur, were coram non judice and nullity in the eye of law, as the mandatory conditions as envisaged under section 196, Cr.P.C. Had not been satisfied. It was submitted that neither the 'Federal Government nor the Provincial Government had accorded the necessary sanction for prosecution as required by section 196, Cr.P.C. To enable the Special Court to take cognizance of an offence under section 295-A, P.P.C. The learned counsel also placed reliance on a judgement, dated 30-8-1999 passed by a learned Single Judge of this Court in the case of Abdul Rashid v. The State in Criminal Appeal No,523 of 1999, wherein the conviction and sentence for an offence under section 295-A, P.P.C. Was set aside for want of necessary sanction by the Government. The learned State counsel was unable to rebut the legal position taken by the learned counsel for the appellant.
3. I have heard the learned counsel for the parties at length.
4. Ordinarily, there is no embargo upon the Court to take cognizance of the offences. But the legislature in its wisdom enacted a special provision of section 196, Cr.P.C. Creating an exception to the general rule. The said provision reads as under:--- "196. Prosecution for offence against the State. No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (exception 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 achority from the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments."
5. There is nothing on record to show that for the purpose of enabling the learned Judge, Anti- Terrorism Court, to take cognizance of the offence under section 295-A, P.P.C., the Federal Government or the Provincial Government or any officer empowered in this behalf by either of the two Governments had passed any order for filing the complaint. The aforesaid provision is couched in the negtive language which, unless the context otherwise requires, is to be considered to be mandatory in nature and not a directory one. Reference may be made to the case of Col. (Retd.)
Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178. It is now well-settled that if a mandatory condition for the exercise of jurisdiction is not fulfilled, then the entire proceedings that follow become coram non judice, illegal and without jurisdiction. See the cases of Mansab Ali v. Amir and 3 others PLD 1971 SC 124 and Rashid Ahmad v. The State PLD 1972 SC 271. The non-compliance of the provisions of section 196, Cr.P.C. Cannot be construed to be a curable irregularity within the meaning of section 537, Cr.P.C.
6. The question of the effect of want of requisite sanction for an offence as mentioned in section 196, Cr.P.C. Was examined by the Courts in a number of cases. In the case of Labh Singh v Narinjan Das AIR 1925 Lah.
449. Harrisan, J, took the view that in absence of an order by the government a required by section 196, Cr.P.C. a Magistrate had no jurisdiction to hold a judicial inquiry. In the cases of (Major- General) Fazali-Raziq, Chairman WAPDA, Lahore v. Ch. Riaz Ahmad and The State PLD 1978 Lah.
1082. And Qaisar Raza v. ' The State 1979 PCr.LJ 758(2) (Karachi), the criminal proceedings under section 295-A, P.P.C. And issuance ' of process thereafter without the orders of the appropriate Government or any other person authorizes by it were quashed. In Moin Alam v. The State 1993 PCr.LJ 1913, a Division Bench of the Sindh High Court took the view that omission to file a complaint in terms of section 196, Cr.P.C. In the absence of the sanction of the appropriate government for an offence under section 121-A, P.P.C. Was not an irregularity curable under section 537, Cr.P.C. But an illegality vitiating the conviction and sentence by the learned Special Court. In the case of Salman Taseer v. Judge, Special Court (1993 SCM R 71), the criminal proceedings were initiated and the learned Special Court took cognizance of an offence under section 124-A, P.P.C. Without the sanction of the Provincial Government or examination of the case by it as required by section 196, Cr.P.C., The Honourable Supreme Court issued notice to the State as to why the petition should not be converted into appeal and be allowed.
7. The learned Judge, Special Court-II, Anti-Terrorism, Bahawalpur, took cognizance of the case, recorded the prosecution evidence, conviction) and sentence of the appellant without adverting to the aspect of the absence of the requisite sanction/order as required by section 196, Cr.P.C. For an offence under section 295-A, P.P.C. The entire proceedings by the learned trial Court being nullity in the eye of law liable to the quashed.
' For the foregoing reasons, this appeal is accepted. The impugned judgment dated 6-2-1998 of the conviction and sentence of the appellant passed by the learned Judge, Special Court-II, Anti- Terrorism, Bahawalpur, is set aside. The appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.