1. ' This application for initiating proceedings against the non-applicant, Major Aurangzeb Khan ex- Deputy Inspector-General of Police (Crimes), Azad Kashmir under sections 193 and 199 of the Penal Code is an off shoot of the habeas corpus petition regarding the detention of Sardar Muhammad Abdul Qaiyum Khan, a former President of Azad Kashmir Government. During the hearing of the habeas corpus petition, Major Aurangzeb Khan appeared as a witness for the Government and apart from describing himself as D. I.-G. (Crimes) he also stated that he also held the additional charge of Home Secretary. This statement is contained in two affidavits dated the 20th of May, 1976 and 23rd of June, 1976. He made similar statements while in the witness-box on the 22nd of July, 1976, 25th of July, 1976 and 22nd of August 1976.
2. ' It is claimed in the application that the non-applicant was at no time Home Secretary of the Government and for this reliance is placed on the judgment of the Supreme Court which was given about six months after the release of Sardar Muhammad Abdul Qaiyum Khan. A copy of the judgment is attached with the application. The relevant passage is reproduced below :- "These facts alongwith the way the President was removed from his office, the subsequent circumstances which forced him to boycott the elections and the arrest of his political workers have to be looked into for determining the mala fide or otherwise. Besides, the dramatic appearance of Major Aurangzeb in Azad Kashmir on the eve of the removal of the detenu from the office of the Presidentship, his appointment as D. I.-G. Against a post newly created for the purpose; his assuming the role of Secretary Home and claiming in the Court as such without any appointment order (apart from legal consequences that are to ensue for perjury) renders the whole atmosphere suspicious and intriguing."
3. ' It is true, as claimed by the petitioner that the Azad Kashmir Supreme Court has thus held that he was not Home Secretary and has also kindly pinpointed the consequences of having made such a claim and even pinpointed the exact offence allegedly committed by him but nevertheless, with all respect to the said Court, it needs to be pointed out that this finding was given without even affording Major Aurangzeb an opportunity of being heard in his defence and to substantiate his claim. It is admitted by Mr. Sayab Khalid who represented the appellant in the Supreme Court and who was awarded rupees two thousand as costs that Major Aurangzeb was not summoned by the Supreme Court and thus not afforded an opportunity to prove that he in fact was holding the additional charge of the Home Secretary at the relevant time. It is a fundamental principle of the administration of justice that no one shall be condemned unheard. The Supreme Court judgment runs counter to this golden rule. It is possible that Major Aurangzeb was not summoned because that might have delayed the pronouncement of the judgment but nevertheless, a finding given behind the back of a person,' is bad in law and I think, devoid of any force. That such a finding should have been given by the Supreme Court, the highest Court in the country, l does not make any difference and does not grant it any sanctity. Far from it ; greater the power, greater is the responsibility. In any case the Supreme Court is as much bound by the law of the land, as any other Court. Therefore, it does not, in my view, furnish any ground to proceed against the non-applicant.
4. ' In so far as the petitioner himself is concerned, he has admitted that he was arrested in 1975 and detained at Dulai where he was intimidated by the non-applicant. He also says that the non- applicant was practically incharge of the sub-jail. If he has anything against the non-applicant, he is free to vindicate his rights but to seek his prosecution as a pro bono public may satisfy his personal vengeance but does not serve the interests of justice. B It has been repeatedly held by superior Courts all over the sub-continent that recourse to section 476, Criminal Procedure Code cannot be allowed to satisfy personal vendetta.
5. ' It also needs to be emphasised that the Government has not come forward to prosecute the non- applicant on the ground taken in the petition.
6. ' Under these circumstances, I see no force in this petition and dismiss the same.