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Criminal Revision Application No. 384 of 1962, decided on 20th February 1963.

Jurisdiction to inquire into facts and give decisions thereon‑Initially vests in trial Court‑Higher Court cannot usurp that jurisdiction in exercise of its revisional powers.

‑Sanction to prosecute‑Allegations primarily and essentially disclosing offence which could not be enquired into without sanction‑Court will not enter upon inquiry into allegations subsidiary to main offence.

Nizamuddin Memon for Applicant.

Kaikobad, A. P. P. for Respondents.

Dates of hearing : 8th, 12th and 13th February 1963.

This is a revision application against the order dated 24th March 1962 of Mr. A. G. Muhammadally, Additional Sessions Judge, Nawabshah, dismissing an application under section 436, Cr. P. C. in which an order passed by the Resident Magistrate, Moro dismissing a complaint was upheld.

2. The facts briefly stated are these. A complaint was filed by the present petitioner Abdul Karim in the Court of the Resident Magistrate, Moro against 15 persons under sections 148, 149, 295, 296, 297, 298, 342 and 109, P. P. C. It was alleged in the complaint that on the night between 29th and 30th July 1961 after Isha' prayers as Waaz' (sermon) was arranged in the mosque at Dari. A sermon was to be given by one Qari Muhammad Issa. That a few minutes before the sermon actually started all the accused had surrendered the mosque and on the starting of the sermon they entered it and used force and assaulted the inmates through a shoe on the person of the said Moulvi, and one of the accused declared that all those who were congregated in the mosque were Wahabis' and he was going to kill Moulvi Issa with the gun which he was handling. It was further alleged that the assailants assaulted the members of the audience and started plucking their beards and hitting them with shoes. It was alleged that they insulted the holy book and the mosque by entering into it with shoes on. Further trouble was averted by the arrival of the police who got the Moulvi to apologise the accused persons and they were taken away from the mosque.

3. When this complaint was filed the learned Resident Magistrate ordered a preliminary inquiry under section 202, Cr. P. C. and examined 6 witnesses after which he dismissed the complaint by a short order which may be conveniently reproduced :‑

"During the course of P. E. the P. W. Muhammad Parial, Wali Muhammad, Abdul Rashid, Hafiz Ismail Khair, Muhammad Hafizullah have been examined. From their statements it appears that offence falls under sections 323, 295‑A and 298 and 296 of the Pakistan Penal Code. According to the provision of section 196, Cr. P. C. the sanction of the Provincial Govern ment is required for taking cognizance of offence under section 295‑A which has not been obtained. As such I am not competent to take any action. I accordingly dismiss the com plaint with this remark for want of sanction."

The complainant took the matter to the Court of the Additional Sessions Judge who upheld the dismissal of the complaint but in doing so he not only dealt with the question of sanction required under section 295‑A, P. P. C. but also went into the merits of the case, discussed the evidence with regard to the various allega tions made in the complaint and reached the conclusion that the accused "at best were provoked to attack and that makes out an offence under section 323, P. P. C. but for that also there is no medical evidence to lend support to their version". With regard to the question of sanction upon which ground alone the Resident Magistrate had dismissed the complaint, the learned Additional Sessions Judge referred to several decisions and though he had not said so, it apppears that he took the view that if the facts disclosed constituted an offence under section 295‑A and also under sections 296, 298, P. P. C. then a trial in regard to the latter two sections could not be proceeded with without a sanction under section 196, Cr. P. C. which is required for the trial of an offence under section 295‑A. But with regard to the offence under section 323, P. P. C. it appears that he was of the view that this could be tried even though the sanction was not there. That is the reason why he has observed that at best an offence under section 323 might have been made out "but for that there was no medical evidence." The learned Judge has then entered upon a lengthy discussion, the burden of which is that even the offence under sections 295‑A, 296 and 298 did not appear to have been committed. He has also taken note of the fact that the complainant should have gone to the police and not filed the direct complaint and he has also been influenced by the factor that though the offence took place on the night between the 29th and 30th of July, the complaint was filed on the 1st of August 1961. He considers this delay to be unreasonable.

4. The way in which the learned Additional Sessions Judge has dealt with this case is very unsatisfactory. The Resident Magistrate had dismissed the complaint upon a preliminary inquiry. He had not registered the case, he had not examined all the witnesses and the sole ground upon which he dismissed it was that in so far as an offence under section 295‑A appeared to have been committed, a sanction under section 196, Cr. P. C. was necessary and that in the absence of such a sanction he could not proceed to enquire even with regard to the other offences which, according to him, appeared to have been committed. This was the only question upon which the learned Additional Sessions judge was really required to address himself. It has to be remembered ;that the jurisdiction in the first instance to enquire into the facts and give a decision thereon vests into the trial Court. That jurisdiction should not be usurped by the higher Court to which the matter comes in revision as happened in this case. In the present case not only that there was no determination by the trial Court with regard to the merits of the case, there was not even all the evidence before it and the nature of the inquiry was such that he was merely required to find out if this was, a fit case in which he should issue process. Why then did the, learned Sessions Judge take upon himself the onerous task of deciding the whole case even before the process had been issued to the accused, is something which I am not able to understand. I would now revert to the main question in the case upon which the determination should have really rested and which1 relates to the question sanction under section 196, Cr. P. C.

"196. No Court shall take cognizance of any offence punish able 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 Provincial Government or some officer empowered by the Provincial Government in this behalf."

Amongst the sections quoted in the complaint filed by the present petitioner in the Court of the Magistrate section 295‑A was not mentioned. That of course by itself is not decisive because it is the allegation in the complaint which matters and not the section of the Penal Code mentioned in it. The complaint is reproduced on. pages 15 and 16 of the paper book and the gist of it as appears from the material paragraphs briefly this: On the night in question a 'Waaz' (religious discourse) was being given by one Qari Muhammad Issa in the mosque of Dari. The sermon started at about 11 p.m. and it was alleged that 10 or 15 minutes before it had started all the accused persons (15 in number) surrounded the mosque and entered it, as soon as the sermon started. One of the accused is said to have been armed with a gun while the others had sticks and lathis with them. One of the accused is said to have thrown his shoe at the Moulvi who was also abused. Others are alleged to have called out that all these were Wahabis' and they should not be spared. The Moulvi and other members of the audience are said to have been assaulted and some of the accused started plucking their beards ; that the accused insulted the Holy Quran and the holy mosque by entering into it with dirty shoes and they confined the Moulvi and a few others inside the mosque by closing the door and bolt ing the same. In the meantime the police arrived on the scene and intervened.

5. From the allegations in the complaint and the arguments which were advanced before the learned Additional Sessions Judge it would appear that the accused persons had taken exception to the address by the Moulvi who, according to them, was levelling attacks against the Prophet. If this was so, then it would be the Moulvi who might be accused of an offence under section 295‑A, P. P. C. which reads as follows:‑

"295‑A. However, with deliberate and malicious intention of outraging the religious feelings of any class of 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 that class, shall be punished with imprison ment of either description for a term which may extend to two years, or with fine, or with both."

But as far as the complaint goes there is no allegation in it which might constitute an offence under section 295‑A, of which the opposite side was accused. It is only when such allegation had been made that the further question would have arisen whether in the absence of an order as required by section 196, Cr. P. C. the other allegation constituting an offence under section 296 or 297, P. P. C. could have been enquired into. The law is well -settled that where the allegation primarily and essentially discloses an offence which cannot be enquired into without a sanction the Court will not enter upon an inquiry into allegations which are subsidiary to those upon which the main offence is based; the principle being that a complainant cannot be permitted to evade the provision relating to sanction or similar other requirements of law. In the present case the allegations in the complaint do not make out a case under section 295‑A. If any evidence, in the preliminary inquiry, was led which was beyond the complaint it should not have been countenanced. The learned Magistrate should not have, therefore, dismissed the complaint upon the sole ground that no sanction under section 295‑A had been obtained.

6. For the reasons given above I set aside the order passed by the learned Magistrate dismissing the complaint for want of sanction. I also set aside the order passed by the learned Addi tional Sessions Judge. I would, however, like to make it clear that I should not be understood to have done so upon consideration of the merits of the case. It may well be that upon a proper inquiry the learned Magistrate may come to the conclu sion that the complaint was false or exaggerated or that the complainant had failed to prove his case. These are matters which must in the first instance fall for determination by the Magistrate himself upon consideration of such material as may be produced before him. The case will now go back to the Court of the Magistrate who shall proceed with it according to law unless the complaint is withdrawn.

K. B. A./A. H.

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