PESHAWAR: The Peshawar High Court on Thursday set aside the provincial government’s notification for empowering an official of the Dera Ismail Khan disatrict administration to register cases of offences against the state and incitement of the personnel of armed forces to mutiny.
The development comes as a bench consisting of Justice Lal Jan Khattak and Justice Shakeel Ahmad accepted two petitions seeking its orders to declare the Aug 19 notification for the purpose null and void.
The bench pronounced a short order declaring the notification illegal after the completion of arguments in the case.
Action on the notification was suspended on Aug 26.
One petition was filed by senior lawyer Shabbir Hussain Gigyani and the other by resident Mohammad Jalaluddin, who was represented by advocate Naveed Akhter.
Announces short order for accepting two pleas against permission for DI Khan official to lodge FIRs
Provincial advocate general Shumail Ahmad Butt and additional attorney general Aamir Javed also appeared in the case.
The petitioners contended that the government misinterpreted Section 196 of the Code of Criminal Procedure for empowering an additional assistant commissioner (AAC) to receive complaints from former federal minister Ali Ameen Gandapur or any other interested party and lodge FIRs with police.
The petitioner Mr Gigyani stated that the provincial cabinet had allowed the registration of cases on Aug 18 and issued the impugned notification the next day.
The notification read, “In exercise of powers conferred by Section 196 of the Code of Criminal Procedure and in pursuance of cabinet decision on August 18, 2022, KP government is pleased to empower Mr Muneer Ahmed, Additional Assistant Commissioner, Dera Ismail Khan, to receive written complaints from Mr Gandapur or any other interested party and require local police to lodge FIRs under sections 108A, 153-A and 505 of the Pakistan Penal Code, read with any other enabling provisions of law, and to sanction and pursue such cases within his respective jurisdiction with effect from August 18, 2022.”
Mr Gigyani argued that the respondents had wrongly interpreted Section 196 of the CrPC and issued the impugned notification for the registration of FIR, initiation of criminal proceedings, and opening of criminal cases against anyone.
He contended that Section 196 of the CrPC was meant for empowering courts to take cognisance for the trial of any such offence mentioned in the said section after completion of investigation and was not applicable before the registration of FIR or case.
The lawyer produced copies of five FIRs registered in Dera Ismail Khan after the issuance of the impugned notification saying the cases were registered against former president Asif Ali Zardari, ex-premier Nawaz Sharif, JUI-F chief Maulana Fazlur Rehman, interior minister Rana Sanaullah and PTI leader Shahbaz Gill.
When the bench wondered how the petitioner was aggrieved with the impugned notification, he replied said that being a student of law, he had filed the ‘public interest petition’.
He referred to several superior court judgements related to pro bono cases and said one of his earlier petitions challenging the controversial Action (in aid of civil power) Ordinance was also accepted by the high court.
The petitioner also referred to a judgement of the PHC Abbottabad Bench issued in 2019 declaring that Section 196 related to giving sanction to a court for taking cognisance of a case for trial and was not meant for registration of FIRs.
He said the section in question did not empower any ‘officer’, what to say about a private person (Mr Gandapur), to direct registration of FIR or initiation of a criminal case.
AG Shumail Ahmad Butt rebutted the contentions of the petitioners and said the provincial government was fully empowered to issue the said notification.
He referred to different judgements of the superior courts contending that for certain set of offences, the provincial government had to give sanction for registration of cases and by issuing the said notification the government had not done something illegal.
Published in Dawn, September 16th, 2022