2021 P Cr. L J 1342
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD ESSA ROOSHAN---Petitioner
Versus
The STATE--- Respondent
Criminal Miscellaneous Quashment No. 275 of 2019, decided on 10th July, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----S. 561- A---Penal Code (XLV of 1860), Ss. 196, 153- A, 123- A & 124 -A---Inherent
powers of High Court ---Quashing of FIR ---Scope ---Prosecution for offences against the
State ---Condemnation of the creation of the State, and advocacy of abolition of its
sove reignty, sedition, promoting enmity between different groups ---Scope ---Petitioner
sought quashing of FIR registered with the allegation of hateful speeches and promoting
feelings of hatred amongst different racial, regional groups and communities ---First
Information Report was registered under Ss. 123 -A, 153- A & 124- A, P.P.C. which were non -
cognizable ---Cognizance could only be taken on the complaint instituted by the Federal
Government or Provincial Government concerned---Provisions of section 196, CrPC we re
couched in negative language which were mandatory in nature as opposed to being merely directory ---Competent authority had not initiated the process, thus, jurisdiction under S. 561-
A, Cr.P.C., could be invoked to prevent abuse of process of the court ---Petition under S. 561-
A, Cr.P.C. was allowed and the FIR was quashed.
(b) Criminal Procedure Code (V of 1898) ---
----S. 561- A---Inherent powers of High Court ---Scope ---Inherent powers under S. 561- A,
Cr.P.C. are rarely and sparingly invoked, only in the i nterest of justice, so as to redress
grievances for which, considering the facts and circumstances of the case, no other procedure or remedy is available ---Jurisdiction under S. 561- A, Cr.P.C., is an extraordinary
jurisdiction, which cannot over -ride provi sions of the Code, but cases may arise where
demands of justice require immediate, real and substantial justice ---Court, in such
circumstances, would be justified to exercise its jurisdiction to save a party from harassment and abuse of the process of cour t---Section 561 -A, Cr.P.C., may be used sparingly, but it
confers wide powers on the court to meet such eventualities and pass any order, which the ends of justice may require.
(c) Administration of justice ---
----Where a particular thing is required to be done in a particular manner then it should be
done in that manner or it should not be done at all.
Naseebullah Tareen for Petitioner.
Muhammad Naeem Kakar, APG for the State.
Date of hearing: 25th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through this petition, the petitioner seeks quashment
of FIR No. 48/2019, dated 27.05.2019 registered with Police Station Pishin under sections
109, 153- A, 123- A, 124- A, P.P.C. read with sections 3, 4 and 6 of Balochistan Sound System
(Regulation) Act, 2016 with the following prayer:
"Keeping in view of above, it is accordingly respectfully prayed that FIR No. 48/2019 lodged with Police Station Pishin on 27.05.2019 may kindly be quashed, with any other relief which this Hon'ble Court deemed fit and appropr iate in the circumstances
of the case, in the interest of justice, equity and fairplay."
2. Brief facts of the case are that SI Imtiaz Ahmed (complainant) lodged the said FIR
against the petitioner with the allegation that on 26.05.2019 at 9:00pm at Pishin, the workers of PTM party without permission started procession on Khaksar Chowk and political leadership of Pashtoon Khwa Milli Awami Party along with their companions were gathered to record their protest, who chanted slogans on Khaksar Chowk and the po litical leadership
delivered their speeches on loudspeakers and other instruments, the petitioner and others
used in appropriate language against the state functionaries and security agencies and tried to provoke the public sentiments against the state, co nsequently the FIR was lodged.
3. Heard the learned counsel for the parties and perused the record with their assistance,
which reflects that the instant case was registered with the allegation of hateful speeches, violation of order, promulgated and promo ting feelings of hatred amongst different racial,
regional groups and communities.
4. According to the FIR the offence under sections 123- A, 153- A and 124- A, P.P.C. are
also included in the same. The above section is not only non- cognizable but there is no
concept of registration of the case under sections 123- A, 153 -A and 124- A, P.P.C. by the
local police. Cognizance of the case under the above section can only be taken on the complaint instituted by the Federal Government or Provincial Government concerne d. In the
present case, the same is lacking as the Federal Government or the Provincial Government has not either examined the case or taken a decision to file complaint regarding commission of the alleged offence. In spite of above, the police has investi gated the case against the
petitioner, thus, the entire proceedings started with registration of the FIR of the case and investigation of the case are not sustainable in the eyes of law. Besides the provisions of section 196, Cr.P.C. is couched in the nega tive language which is mandatory in nature as
opposed to being merely directed. It would be relevant to reproduce section 196, Cr.P.C. which reads as under:
"196. Prosecution for offences again 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 or
section 295- A or section 505 of the same Code, unless upon complaint made by order
of or under authorit y from, the Central Government or the Provincial Government
concerned, or some officer empowered in this behalf by either of the two
Governments."
Thus non- compliance of section 196, Cr.P.C. vitiates the entire proceedings. In the
absence of the order by the Government as required by section 196, Cr.P.C. the local police
has no jurisdiction to lodge the FIR. Besides, there is also violation of mandatory provisions of Code of Criminal Procedure inter alia in the registration of the case and conducting inves tigation. The rules of procedure are meant to ensure the right to liberty of the accused
and due dispensation of justice, it is the fundamental principle of law that penal laws must be interpreted strictly and not so as to deprive a subject of this legal r ight. It is also settled
principle of law that if a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done or at all.
5. In the instant case the petitioner seeks quashment of FIR regist ered against him
mainly on the ground that cognizance of the offence mentioned herein above can only be taken upon a complaint filed by the authority of a Federal or Provincial Government or some other officer empowered in this behalf, which has not been done in the present case, no court, thus, can initiate process against the accused, because in the present case, FIR was registered by the SI (complainant) concerned on his own and, competent authority under the law has not initiated the process, jurisdicti on, thus, under section 561- A, Cr.P.C. can be invoked to
prevent abuse of process of any court to secure the ends of justice. No doubt, the inherent
power should be rarely and sparingly invoked only in the interest of justice, so as to redress grievances f or which, considering the facts and circumstances of the case, no other procedure
or remedy is available. It is an extraordinary jurisdiction, which cannot over -ride provisions
of the court, but, cases may arise where demands of justice require immediate, real and
substantial justice. In such circumstances, the court would be justified to exercise their jurisdiction to save a party from harassment and abuse of the process of court. Section 561- A
may be used sparingly, but, it confers wide powers on the cour t to meet such eventualities
and pass any order, which ends of justice may require. The case in hand, in my perception, does fall within the parameters referred to hereinabove.
6. In the instant case the FIR was registered on the alleged report of SI/SHO concerned,
who is neither the Central or Provincial Government, nor he is the person, who is authorized for the purpose as envisaged under section 196, Cr.P.C., hence the proceedings carried out by the concerned police station are void and nullity in the ey es of law.
In view of what has been discussed hereinabove, the petition filed by the petitioner
namely Muhammad Essa Rooshan son of Muhammad Ghayas is allowed. Consequently, FIR No. 48 of 2019 of PS Pishin under sections 109, 153- A, 123- A, 124 -A, P.P.C. r ead with
sections 3, 4 and 6 of Balochistan Sound System (Regulation) Act, 2016 and the proceedings thereto qua the petitioner stand quashed. Order accordingly.
SA/168/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.