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Criminal Miscellaneous Application No. 407 of 1976, decided on 25th November, 1978.

--Ss. 196 & 561-A read with Penal Code (XLV of 1860), S. 295-A Quashment of proceedings-Complaint for an offence under S. 295-A filed without obtaining sanction from Central or Pro vincial Government--Complaint also not filed by a person authorised by competent authority to do so-Proper procedure under S. 196, Cr. P. C. not followed-Proceedings quashed with obser vation that concerned authorities may proceed in strict accordance with law.-[Complaint].

Mulana Dost Muhammad v. The State 1976 P Cr. L J 184 rel.

Imam Ali Kazi for Applicant.

Abdul Sattar Shaikh, Asstt. A.-G. for the State.

Date of hearing : 25th November; 1978.

-This is an application under section 561-A, Cr. P. C. for quashing proceedings pending in the Court of Sessions Judge, Khairpur for offence under section 295-A, P. P. C. against the applicant.

Shortly stated the facts are that applicant Qaiser Raza was at the relevant time 15 years old and it is alleged that he bad written the names of first three Caliphs (Companions of the Holy Prophet) on the palms of his feet and .was moving about in the Superior Science College, Khairpur which caused resentment among the students community. The news reached the Principal of the College who closed the College on account of tension as a precautionary measure. On spy informa tion S. H. O. of Police Station, Khairpur registered F. I. R. under section 295-A, P. P. C. (Crime No. 78 of 1976) and is stated in its last line that he is filing his complaint on behalf of the State. Applicant was arrested on 22-4-1976 and the case was sent up to the Court of City Magistrate Khairpur and after the amendment in the Law Reforms Ordinance, the case was sent up to the Court of Sessions Judge, Khairpur for trial. The learned counsel for the applicant has contended before me that he would confine his arguments only on a short legal point which is involved in this case and would not advert to the factual aspect of the case. The learned Assistant Advocate-General appearing on behalf of the State has also admitted that the main point involved in the case is of a legal nature and it is not necessary to go into the facts of the case. According to the learned counsel for the applicant the offence against the applicant is under section 295-A, P. P. C. which provides for punishment in a case in which religion or religious beliefs of any class are maliciously insulted but for initiation of proceedings under this section there is a bar under section 196, Cr. P. C. to the taking of cognizance. Section 196, Cr. P. C. specifically envisages that no cognizance of specified offences including section 295-A can be taken unless upon a complaint made by order of, or under the authority from the Central Government or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments. It is further contended on behalf the applicant that since this being the legal position, the mandatory requirement of obtaining the sanction from the Central Government or the Provincial Government has not been fulfilled and the S. H. O. who has filed the F. I. R. without sanction or authority from the Government was incompetent to do so and further more in a case of offence under section 295-A, P. P. C. the accused cannot be arrested except on a warrant issued by the Court and proceed ings cannot be initiated except on a complaint filed in the Court of competent jurisdiction in accordance with the procedure as laid down in section 196, Cr. P. C.

From the perusal of the record it appears that the S. H. O. has registered F. I. R. crime number of which 78 of 1976 has also been given but at the bottom of the F. I. R. one sentence is added to the effect that he was filing this complaint on behalf of the State. On the other hand it is indisputable that this has been treated as F. I. R. and thereafter the applicant was arrested by the S. H. O. and challan was presented in the Court. The requirement of section 196, Cr. P. C. is that in such a case a complaint is to be filed before the Court of the competent jurisdiction after obtaining the sanction from the Central Government or Provincial Government. This obviously has not been done in the instant case and it does not appear from the record that S. H. O. had obtained the sanction or was authorised by the competent authority to file a complaint. The learned counsel for the applicant has cited before me the case of Maulana Dost Muhammad v. The State (1976 P Cr. L 1184) decided by this Court in which for non-compliance of provisions of section 196 proceedings initiated for an offence under section 124-A, P. P. C. were quashed by the Court on the ground that proper procedure laid down under the law under section 196, Cr. P. C. was not followed. The provisions of section 196, Cr. P. C. are very clear and whole case law has been discussed in detail in the ruling cited by the learned counsel and the learned Assistant Advocate General appearing for the State concedes that proper procedure has not been followed hence I quash the proceed ings pending in the Court of the Sessions Judge, Khairpur arising from Crime No. 78 of 1976 of Police Station, Town Khairpur. However, it is left open that the concerned authorities, if they are so advised, may proceed against the petitioner but in strict accordance with the orders of the Provincial Government or the Central Government and requirements of the section 196, Cr. P. C.

Proceedings quashed.

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