ABDUR RASHID vs THE STATE

' This judgment will dispose of Criminal Appeal No, 523 of 1999 filed by Qari Abdul Rasheed, appellant, who was convicted and sentenced by Judge Special Court No, II, Anti-Terrorism Act, 1997 on 1-6-1999 to undergo three years R.I. Under section 295-A, P.P.C. He was further convicted and sentenced under section 188, P.P.C. To undergo six months R.I. Both the sentences were ordered to run concurrently.

2. It may be noted here, that three co-accused of the appellant namely llama Ahmad Ludhanvi, Masood-ur-Rehman Usmani and Abdul Hameed Yazdani are still at large.

3. Learned counsel for the appellant before going through the evidence has taken a legal objection that whole proceedings are liable to be vitiated for the reasons that no complaint under section 196 Cr.P.C. Was filed and it is a clear violation of the said section of the Criminal Procedure Code. He has also relied upon 1997 PCr.LJ 758 and 1976 PCr.LJ 184.

4. On the other hand, learned A.A.-G. Submits that infect sanction was granted for the prosecution of present appellant but this is not a answer to the question raised by learned counsel for the appellant.

5. I have myself gone through section 196, Cr.P.C. Which is reproduced below.

"196. Prosecution for offences against 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 15-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 authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two .Governments."

6. After going through the said section, it is crystal clear, that no Court can take cognizance of any offence punishable under Chapter VI or IX-A including VI and IX of Pakistan Penal Code unless a complaint has been filed by the order 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.

7. As far as, definition of complaint is concerned, i,e, mentioned in section 4 (h), Cr.P.C. Which is reproduced below; "Section 4(h) 'Complaint', 'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."

8. This definition includes the police report. In the instant case, F.I.R. Was lodged at the instance of Muhammad Yaseen F.C., who was not competent under the law to lodge the same. Without going into the merits, the legal objection raised by learned counsel for the appellant is upheld and the appeal filed by the appellant is accepted and judgment, dated 1-6-1999 is set aside. Appellant is behind the bars, he shall be released forthwith if not required in any other case.