Muhammad Essa Rooshan vs The State

ROZI KHAN BARRECH, J.---Through this petition, the petitioner seek s 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 appropriate 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 political 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, consequently 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 promoting feelings of hatred amongst dif ferent 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 concerned. 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 investigated the case against the petition er, 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. Beside s the provisions of section 196, Cr.P.C. is couched in the negative 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 1X-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 authority 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 investigation. 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 right. 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 registered 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) conce rned on his own and, competent authority under the law has not initiated the process, jurisdiction, 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 for 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 court 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 eyes 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. read with sections 3, 4 and 6 of Balochistan Sound System (Regulation) Act, 2016 and the proceedings thereto qua the petitioner stand quashed. Order accordingly .