THE STATE Versus MUMTAZ ALI BHUTTO

ORDER

1. Applicant Billawal was arrayed alongwith 7 co‑accused in a complaint filed under section 124‑A, P.P.C. and 13 Anti‑National Activities Act, 1974 by Maula Bux Ansari, D.S.P., Nawabshah. The complaint was accompanied by an order purported to have been signed by Parvez Ahmed Butt, Additional Chief Secretary, Government of Sind sanctioning the prosecution of the 7 co‑accused referred to above under section 196, Cr.P.C. and section 13 of Prevention of Anti‑National Activities Act, 1974. Neither the name of applicant Billawal was there in that sanction order nor the learned A . A .‑G. could produce a separate sanction order against Billawal in spite of time obtained by him in this behalf.

2. The bail application of applicant Billawal is pressed mainly on the ground that there being no sanction against him under section 196, Cr.P.C. and section 13 of Anti‑National Activities Act, 1974, the very cognizance of the case against him is illegal.

3. Mr. Syed Sarfraz Ahmed, learned A.A.‑G., submitted that the fact that sanction was given by the Government with respect to the offence and a complaint was filed against the accused including the present applicant, it was not necessary to insist on a separate sanction against him. In this regard first he relied upon the case of Sadiq Masih v. The State reported in P L D 1978 Kar.

108. This case on the face of it is distinguishable in that it relates to a complaint required to be filed by a public servant under section 195(1)(a), Cr.P.C. by a public servant and all that was said is that even if the complaint was headed as a challan/report it was sufficient compliance of the requirement of filing the complaint. It did not take into consideration a case in which a sanction was to be accorded by the Government under section 196, Cr.P.C. and, therefore, cannot be pressed into use in this case.

4. The next authority cited by the learned A . A .‑G . is in the case of Varadarajulu reported in A I R 1919 Mad. 968. In this case a telegram sent by the Government authorities to the D . M. to prosecute the accused under section 124, I.P.C. was considered as sufficient sanction under section 196, Cr.P.C. In the present case no such telegram or even a letter from Government has been produced sanctioning the prosecution against applicant Billawal and, therefore, this ruling also cannot be used as authority for this case.

5. As against this Mr. Rashid Rizvi, Advocate for the applicant has relied upon the case of Mohammad Khan v. Government of West Pakistan reported in P L D 1960 (W.P.) Lah. 434, where it was held that the personality of the offender cannot be divorced from the offence committed by him and, therefore, it is necessary that the sanction under section 196, Cr. P. C . should be both in regards offence as well as to the offender.

6. I am, therefore, of the specific view that as the sanction order produced in the case does not contain the name of the applicant Billawal, therefore, it is clear that the complaint against the applicant has been filed without obtaining sanction from the Government with respect to him as required under section 196, Cr.P.C.

7. In this view of the matter the case against the applicant is not likely to end in conviction. Hence, I direct that applicant Billawal be released on bail on furnishing surety and P.R. bond in the sum of Rs.1,00,000 to the satisfaction of the Registrar of this Court.

8. S.A./S‑123/K Bail allowed.