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Criminal Miscellaneous No. 74 of 2014, decided on 19th March, 2015.

----S. 295-A---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Criminal Procedure Code (V of 1898), Ss.196 & 561-A---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs---Quashing of proceedings---Case under S.295-A, P.P.C., could not be registered against any person, unless same was made upon complaint by order of or under authority from the Federal Government or the Provincial Government concerned; or some other officer empowered in that behalf by, either of the two Governments---In the present case, no such sanction had been obtained---If case pertained to offences against State; cognizance thereof could not be taken unless clog put in S.196, Cr.P.C., was removed---No doubt, provision of S.196, Cr.P.C., was mandatory in nature, unless prohibition contained in said section was crossed by sanction of Federal or Provincial Government, followed by a complaint by an authorized person, however when such a case became triable by a Special Judge, established under Anti-Terrorism Act, 1997, provisions of S.196, Cr.P.C., which pertained to general law, would not be applicable to the proceedings before Special Court, because Anti-Terrorism Act, 1997, which was a special law, had overriding effect, notwithstanding anything contained in Criminal Procedure Code, 1898.

----S. 196---Prosecution for offences against the State---Object of S.196, Cr.P.C., was to prevent unauthorized person from intruding---State affairs by instituting State prosecution, and to secure that such prosecution would only be instituted under the authority of the Government---Government was to decide, whether an offence of the kind mentioned in S.196, Cr.P.C., should be tried in court; or whether it would be more in the interest of the people, or administration to suppress the trial; and since an offence would assume importance, not only from its own nature, but also from the personality of the offender---Government was empowered to decide, whether a particular person should be prosecuted or not.

----Ss. 561-A & 265-K---Inherent jurisdiction of High Court---Power of court to acquit accused at any stage---Powers of Chief Court under S.561-A, Cr.P.C., was not meant to stifle the prosecution, rather was intended to prevent the process of court being abused, or perversion the purpose of law---Jurisdiction under S.561-A, Cr.P.C., could be invoked to quash the proceedings in cases where trial of accused would tantamount to abuse the process of court---Provision of S.561-A, Cr.P.C., stipulated that the inherent powers, vested in the Chief Court to prevent the abuse of the process of any court, or otherwise to secure the ends of justice, were not limited---Object of S.561-A, Cr.P.C., was to do the real and substantial justice, which being extra ordinary in nature, was desired by law to be exercised sparingly, with utmost care and not in a casual manner---While exercising said powers, the main consideration for the court should be that whether the continuance of the proceedings before court would be a futile exercise, and would result in abuse of process of court or not---Legal proceedings, could be quashed where case was of no evidence at all, or where as a matter of law, there could not be any possibility of conviction of accused; and to keep a case lingering on in said circumstances, would amount in fact to an abuse of process of the court---Law favoured that every case should be allowed to proceed according to law; and resort to S.561-A, Cr.P.C., should not lightly made, as same would tend to circumvent to due process of law---Section 265-K, Cr.P.C., almost provided to the Trial Court exclusive power of Chief Court under S. 561-A, Cr.P.C. and both could be resorted to---Petition seeking quashing of criminal case without availing of alternate remedy provided under S.265-K, Cr.P.C., would be competent, when the petitioners, were handicapped in availing of alternate remedy under S.265-K, Cr.P.C., for acquittal---Proposition of law that jurisdiction under S.561-A, Cr.P.C., was of an extraordinary nature to be used only in extraordinary cases, where no other remedy was available, was beyond controversy---Said powers were not usually invoked, when there was another remedy available---Where remedy under S.265-K, Cr.P.C. was available to the petitioner, he could not move the Chief Court under S.561-A, Cr.P.C. Amjad Husain for Petitioners. Dy. Advocate-General for Respondent. Date of hearing: 19th March, 2015.

This petition under section 561-A, Cr.P.C. seeks quashment of proceedings initiated with reference to criminal case FIR No.1 of 2014 registered against the petitioners with Police Station Nasir Abad, District Hunza/Nagar on the complaint of Head Constable Muhammad Naeem. In his report the complainant has stated that on 3-1-2014 at about 1530 hours he was informed through some sources that the petitioners have arranged a ceremony namely "Dawat-e-Baqa" in the house of petitioner Dado Khan situated at Mohallah Ort Nasirad for nothing but to promote their un-Islamic ideas and beliefs and have invited round about 60/70 ladies and gents to participate the ceremony. On receiving the information, the complainant firstly went to the place of ceremony to refrain the petitioners from celebration of the ceremony but failed to convince the petitioner despite of the fact that Interior Ministry had already imposed ban upon "Khan-e-Hikmat". 2. The petitioners have assailed in the petition that the ceremony namely "Dawat-e-Baqa and "Chargah Roshan are known as religious festivels of Ismaili community and contended that every person of the country is at liberty to promote his ideas related to religion as such the FIR under attack having being registered in clear violation of the provision laid under Article-20 of the Constitution is liable to be quashed. It was further contended that the petitioners have committed no offence and that the FIR has also registration in utter violation of section 196, Cr.P.C. as such the same is liable to be cancelled. 3. We have heard Mr. Amjad Hussain Advocate for the petitioners and Malik Sherbaz Dy. Advocate General for the respondent at considerable length and have scanned the evidence brought on record. In his arguments the learned counsel for the petitioners submitted that no offence has committed by the petitioner and the instant FIR has been registered just to pressurize the petitioner to keep them silent. He argued that there is no evidence on the record showing the I.O. has succeeded in gathering evidence which" prima facie, connects the petitioners with the alleged offence. He maintained that convening meetings to celebrate religious functions are purely the issue related to private life of a person, as such the proceeding initiated by the State on the basis of impugned FIR is liable to be quashed. He further maintained that when a person is booked under the charges provided under section 295-A, P.P.C. same could not be done until approval was not obtained from competent authority which is lacking in this matter and due to this sole reason the criminal proceeding against the petitioners could not be sustained. 3.(sic.) Malik Sherbaz the learned Dy. Advocate General on the other hand contended that the instant case has been registered against the petitioners triable by the Special Court established under provisions of Anti-Terrorism Act, 1997, as such the provision of section 196, Cr.P.C. which pertained to general law, would not be applicable to the proceedings before Special Court for having overriding effect. He contended that the petitioners by arranging ceremony namely "Dawat-e-Baqa", have Injured the religious feelings of many person creating tension in the society, as such they have committed an offence punishable under section 295-A, P.P.C., therefore, the proceedings initiated against the petitioners will be determined by the trial court as to whether the allegations leveled against the petitioners could constitute or not an offence hence invoking of the provisions laid under section 561-A, Cr.P.C. is not tenable in the eye of law. 4. We have given our thoughtful consideration to the arguments advanced before us by the respective counsel of the parties and have also perused the entire record of the case with their able assistance. 5. The instant case has been registered against the petitioners under section 295-A, P.P.C. What does the Provision laid under section 295-A, Cr.P.C. say, the same is reproduced as under:- "295-A... Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.... Whoever, with deliberate and malicious intention of outraging the religious feelings, of any class of the citizens of Pakistan, by words, either spoken or written or by visible representations insults or attempts to insult the religion or the religious beliefs of the class, shall be punished with imprisonment of either description for a term which may extend to (Ten) years, or with fine or with both". 6. It may be noted that sections 6/7 of the Anti-Terrorism Act have been added in the case and assertion of the sections will change the position of the case as to whether the provisions of section 196, Cr.P.C. will be followed herewith or not. A case under section 295-A, P.P.C. could not be registered against any person unless same has not made upon complaint made by order of or under authority from the central Government or the Provincial Government concerned, or some other officer empowered in this behalf by either of the two governments. But in this case as the record reveals that no such sanction has been obtained except that Secretary Law vide his letter dated 28-3-2014 has approved sanction for taking cognizance of the case by the concerned Courts. It is a fact that a case pertained to offences against state; cognizance thereof could not be taken unless log put in section 196, Cr.P.C. is removed. No doubt that provision of section 196, Cr.P.C. are mandatory in nature, unless prohibition contained in the said section was crossed by sanction of central Government or Provincial Government followed by a complaint by an authorized person but such case when became triable by a Special Judge established under Anti-Terrorism Act, the provisions of section 196, Cr.P.C. which pertained to general law would not be applicable to the proceedings before Special Court because the Act which is a special law had overriding effect not withstanding anything contained in Criminal Procedure Code. Thus, at this stage the plea taken by the petitioners about sanction as provided under section 196, Cr.P.C. is not applicable at this stage because sections 6/7 of the A.T.A. are still intact in the case. The object of section 196, Cr.P.C. is to prevent unauthorized person from intruding in state affairs by instituting state prosecution and to secure that such prosecution shall only be instituted under the authority of the Government. It is, therefore, for the Government to decide whether an offence of the kind mentioned in section 196, Cr.P.C. should be tried in court or whether it would be more in the interest of the people or administration to suppress the trial and since an offence assumes importance not only from its own nature but also from the personality of the offender, it would be in the power of Government to decide whether a particular person should be prosecuted or not. 6.(sic.) The present petition has been filed invoking the provision laid under section 561-A, Cr.P.C. What does the provision of the section say, same is reproduced for ready reference as under:- 561-A. Saving of inherent power of High Court. Nothing in this code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. 7. The language of the section signifies a perversion of the purpose of law where the machinery of justice is negated resulting in harassment to any innocent person and negating the very purpose of justice. Power under section 561-A, Cr.P.C. is not meant to stifle the prosecution rather is intended to prevent the process of court being abused or perversion the purpose of law. Therefore, jurisdiction under section 561-A, can be invoked to quash the proceedings in rear cases where the trial of an accused person tantamount to abuse the process of court. The provision of section 561-A, Cr.P.C. stipulates that the inherent powers vested in the High Court to prevent the abuse of the process of any court or otherwise to secure the ends of justice are not limited. The object of the section is to do the real and substantial justice and the powers vested upon High Court which being extra ordinary in nature is desired by law to be exercised sparingly with utmost care and not in a casual manner. While exercising the powers, the main consideration for the court should be that whether the continuance of the proceedings before court would be a futile exercise and would result in abuse of process of Court or not. It is an admitted fact that legal proceedings could be quashed where case of no evidence at all or where as a matter of law there could not be any possibility of conviction of accused and to keep a case lingering on in said circumstances would amount in fact to an abuse of process of the court but at the same time law favours that every case should be allowed to proceed according to law and resort to section 561-A, Cr.P.C. should not lightly made as same would tend to circumvent to due process of law. 8. In the present case the petitioners are charged for offence punishable under section 295-A, Cr.P.C. read with sections 6/7 of Anti-Terrorism Act. The allegation is that they while cermonizing a religious function, tried to insult the religion or the religious beliefs of a class with deliberate and malicious intention. The I.O. has gathered evidence and the prosecution is of the claim that the petitioners have committed the offence provided under the said section duly have connected by the evidence gathered by the I.O. law is in favour of the manner that proceedings must be ended after got completed the process provided in the procedure and section 561-A, Cr.P.C. meets the situation which the court did not provide for or when the abuse of process of court was so gross or apparent challenging the Judicial conscience which could not remain oblivious to it or the ends of justice demanded action not covered by Criminal Procedure Code. 9. Section 262-K, Cr.P.C. almost provides to trial Court co-extensive power of High Court under section 561-A, Cr.P.C. and both can be resorted to. Therefore, petitioners seeking quashment of criminal cases without availing of alternate remedy provided under section 265-K, Cr.P.C. would be competent when the petitioners are handicapped in availing of alternate remedy under section 265-K, Cr.P.C. for acquittal. The proposition of law that jurisdiction under section 561-A, Cr.P.C. is of an extraordinary nature to be used only in extraordinary cases where no other remedy is available, is beyond controversy. These powers are not usually invoked when there is another remedy available. Therefore, when remedy under section 265-K was available to the petitioner he could not move the Chief Court under section 561-A. 10. For the reasons what have been discussed above, we find no merit in this petition, hence dismissed. HBT/79/GB Petition dismissed.

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