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Criminal Appeal No. 4 of 2011 in C.P.L.A. No. 13 of 2011, heard on 16th May, 2014.

----S. 153-A---Anti-Terrorism Act (XXVII of 1997), Ss.8 & 9---Criminal Procedure Code (V of 1898), Ss.417(2) & 196---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60---Promoting enmity between different groups, acts intended or likely to stir up sectarian hatred and offences against the State---Procedure---Appeal against acquittal---Maintainability---Section 196, Cr.P.C., had elaborated that it was the domain of the Central Government or the Provincial Government or an officer empowered on their behalf to move a complaint for invocation of S.153-A, P.P.C.---Procedure specified in S.196, Cr.P.C., had to be strictly complied with and any defect in procedure was not curable---Such mandatorily expressed provision could not and should not be overlooked---Supreme Appellate Court observed that Legal Branch in Gilgit-Baltistan, should be well versed with such matters and all District Police Officers should be acquainted with the matters for which procedure had been laid down and steps to be taken---Findings of the Chief Court Gilgit-Baltistan, in the present case, whereby accused were acquitted from the charges, prosecution and Law Department should have gone through the clear cut orders of the court and realized their mistake, and having legal approach not to prefer an appeal in the Supreme Appellate Court, as the said order had no infirmities---Legal department, in the present case, should have consulted the Advocate General Gilgit-Baltistan, who was representing them; if they did not agree to his professional advice, then Law Department should depute one of its experts, and well versed officers to deal with the matter with their professional advice by performing such non-maintainable appeal against acquittal, revisions and reviews---Supreme Appellate Court further observed that findings of the Chief Court, in the present case, were not based on the merits and quality of evidence adduced, but on the mode adopted for prosecution of the individuals. Rashid Ahmad v. The State PLD 1972 SC 271; Mst. Akhtar Malik v. Federation of Pakistan and 5 others 1994 PCr.LJ 229; Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11 and Bashir Ahmad v. The State 2000 PCr.LJ 902 ref. Advocate-General Gilgit-Baltistan for the State. Malik Haq Nawaz for Respondent No.4. Mir Ikhlaq Hussain for Respondents Nos.1, 2 and 3. Date of hearing: 16th May, 2014.

This petition has been preferred by the State as appellant under Article 60 of (Empowerment and Self Governance) Order, 2009, where by the 4 respondents have been acquitted from the under section 153(A), P.P.C. along with 8/9, A.T.A., whereby the imprisonment of five (5) years awarded to them by the A.T.A., Court which was set aside by the order of Chief Court Gilgit-Baltistan dated 25-5-2011. The petitioner/appellant is of the view that the said order is illegal, unwarranted by law and caused for reversal of the stated order. The subject is the outcome of the F.I.R. No. 17/2010 dated 12-4-2010 registered at Police Station Skardu on the basis of the information received. The matter pertains to the distribution of objectionable pamphlets distributed by one Sufi Ali which were consisting insulting material which could cause sectarian hatred between different sections of the society belonging to different sects. After preliminary investigations it led to the arrest of Sufi Ali who acknowledged that 150 booklets along with a CD provided by Ghulam Muhammad for distribution among the people, he had in his possession 17 booklets a CD and written material which had been provided to him by the said Ghulam Muhammad and the remaining material had been distributed. After adducing other witnesses and their statements under section 161, along with the confessional statement of the accused. After completion of investigation the challan of the case was put-up before the A.T.A., Court the respondents arrested the 4 respondents and charged them under section 153-A, P.P.C. and 8/9, A.T.A. The trial Court after adducing 10 P.W"s. sentenced the respondents namely Syed Nawaz Hussain respondent No.3 and accused Ali Muhammad Hadi, respondent No.4 for imprisonment of 5 years and fine Rupees Fifty Thousand (50,000) each. Whereas the respondent No.1 under section 9 of A.T.A., the accused Ghulam Muhammad and Sufi Ali were sentenced to imprisonment for six months with fine of Rupees Ten Thousand (10,000). In revision before Chief Court Gilgit-Baltistan the respondents were acquitted from the charges framed against them. The Advocate General Gilgit-Baltistan being aggrieved by the findings of the Chief Court Gilgit-Baltistan filed the present appeal with the contention that the Chief Court Gilgit-Baltistan has not properly applied its mind to the fundamental issues regarding the committed offence and has come to a conclusion on the basis of flimsy, technical issues. The act done by respondents is fully covered by the sections for which they are charged. The acts committed and proved as of a nature which had enticed the different communities and sects present in the Area. It was a cause for spreading sectarian hatred which the GilgitBaltistan is facing for quiet some time. The preaching and distribution of literature is of objectionable in nature which is conflicting with the basic principles of different sects. Such preaching and literature spread hatred and can erupt to sectarian violence on a large scale. The Advocate General Gilgit-Baltistan in the end is also of the opinion that the period undergone by the respondents may be considered as sentence undergone so that in future no individual will dare to indulge in such sensitive issues. Counsel for the respondents are heard in length. Basically the matter regarding the FIR being lodged at Police Station Skardu has been challenged. It is pleaded that the matter regarding institution of a criminal case through a FIR is a matter of coram non judice. We have gone through the entire record of the case and the points raised by the Prosecutor and the Defense we feel that at the outset we would like to discuss the maintainability of the FIR in the eyes of the expressed provisions of law. It has to be seen whether an FIR was the proper procedure to be adopted against the offenders and offences of the like nature. The section 153(A), P.P.C. pertains to offences which relate to promotion of enmity between the groups etc. whereas section 196, Cr.P.C. clearly elaborates that where section 153(A), P.P.C. is invoked it is the domain of the Central Government or the Provincial Government, on a complaint preferred by them or an officer empowered on their behalf. The section 196, Cr.P.C. is reproduced as under, "PROSECUTION FOR OFFENCE 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 153-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." The crux and sole of the above mentioned section is absolutely clear and it is mandatory to proceed in the manner specified and has to be strictly complied with any defects in procedure can not be cured, such mandatory expressed provisions cannot and should not be overlooked. There is a legal branch in Gilgit-Baltistan which should be well versed with similar matters and all District Police Officers should be acquainted with such minor matters for which procedures had been laid down and what steps to be taken. In a case instituted against individuals of the Naseer-ud-Din Hunzai where an FIR was lodged for a similar matter and in the stated matter decision had been announced by the Chief Court Gilgit-Baltistan, where the accused persons had been acquitted from the charge as the Provincial Government had not complied with the procedure laid down in section 196, Cr.P.C. in the same case it was elaborated that where matter pertaining to sustain issues been exploited, discredited insight religious hatred could be dealt with through a complaint and not through an FIR, where the complainant could be the Federal or Provincial Government or anybody on their behalf. The said case and findings are in the knowledge of the Provincial Government and also the Law Department. The same mistake has again been repeated in the present case there could be only two conclusions where such drastic mistakes are made first that the Provincial Government is not serious enough to pursue the matter to the hilt the FIR is lodged and arrests are made as an eye wash to temporarily pacify the agitated curtsies. They are not serious to convict the offenders as an example. Secondly that by presenting the criminal case before the ATA Judge for trial and obtaining conviction and later on the matter be thrown in the Court of the Judiciary and then sitting back. In the present case the findings of the Chief Court Gilgit-Baltistan whereby the convicted/accused were acquitted from the stated charges, then the prosecution and the Law Department should have gone through the clear cut orders of the Court. They should have realized their mistakes and should have legal approach not to prefer an appeal in the present Court as the said order does not have any infirmities. The legal Department should consult with Advocate General Gilgit-Baltistan, who is representing them and if they do not agreed to his professional advice then the Law Department should depute one of its expert and well versed officers to deal with the matter with their professional advice by performing such non-maintainable appeals Revisions and Reviews the Provincial Government is wasting precious time of the Courts as well as their own. We have minutely perused the relevant case laws presented who have laid down golden rules to be kept in mind in similar cases i.e. (1) Rashid Ahmad v. The State, PLD 1972 SC page 271. (2) Mst. Akhtar Malik v. Federation of Pakistan and 5 others, 1994 PCr.LJ page 229. (3) Ghulam Sikandar and another v. Mamaraz Khan and others, PLD 1985 Supreme Court 11. (4) Bashir Ahmad v. The State, 2000 PCr.LJ page 902. Our finding in the instant case is not based on the merits and quality of the evidence adduced but on the mode adopted for prosecution of the individuals. The copies of this order may be sent to the Chief Secretary Gilgit-Baltistan and Inspector General of Police Gilgit-Baltistan. HBT/5/GB Order accordingly.

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