2014 PLP 2134 (YLR)

MUHAMMAD IQBAL KALHORO, J.--This order shall dispose of Cr.Bail Application No.D-73 of 2014 filed on behalf of applicant Raza Muhammad Shah in Crime No.252/2013 Police Station Naushahro Feroze for the offences under sections 295-A, 296, 298, 341, P.P.C. read with section 9 ATA 1997 & 3 WPR.C Speaker Sound Ordinance.

2. The concise resume of the facts stated in the F.I.R. by the complainant A.S.-I. Ayaz Hussain Malah Police Station. Naushahro Feroze, is that he was on patrol duty alongwith his subordinate staff in Government Vehicle No.7452 vide DD Entry No.322810 dated 30-11-2013, during which he received a tip-off that for tomorrow viz 1-12-2013 near the house of Mujahid Hussain Shah, Ahl-e-Sunnat was making preparation for holding its religious congregation. It is further alleged in the F.I.R. that accused constable Raza Muhammad Shah had erected speed breaker on the way leading to the place .of congregation and had also installed Loudspeaker upon which he was playing Cassettes fomenting hatred. On such information the complainant is alleged to have arrived at the place of incident where he saw the Loudspeaker available and were running at high pitch voice whereby accused constable Raza Muhammad Shah was dubbing the congregation of Ahl-e-Sunnat as belonging to Yazeed. It is further alleged in the F.I.R. that along with accused Raza Muhammad 30/40 persons were also present who under the leadership of him, were raising slogans. The complainant also saw at the place of incident a huge speed breaker was erected wherefrom no Vehicle was able to cross the road. The complainant tried to stop the accused Mujahid Shah from raising slogans and told him to remove the speed breaker but accused Raza Muhammad Shah kept calling the congregation of Ahl-e-Sunnat as belonging to Yazeed and continuously voiced out hatred against them. It is further alleged that complainant could not arrest the accused Raza Muhammad Shah at the spot fearing a religious dispute there. However, he returned to the Police Station, where he lodged the present case against the applicant and 30/40 other persons.

3. Learned counsel for the applicant has argued that the applicant is innocent and has been made victim of the enmity with the complainant. Per learned counsel the police was acting upon a secret information in advance but no private person was associated by them to witness the alleged incident. He also argued that the present case is based upon only on the statements of police officials without any independent corroboration, as such the case against the accused calls for further enquiry. He also argued that under section 196, Cr.P.C. the police are not competent to register the F.I.R. under section 295-A, P.P.C. unless the complaint is made by order or under authority from the Central Government or the Provincial Government concerned. He argued that only on that account the applicant/accused is entitled for concession of bail. He relied upon following case law:-- (1) 2000 PCr.LJ 902 (2) 2003 YLR 3137 (3) PLD 2005 Lahore 631.

4. While rebutting him, the learned State Counsel opposed the grant of bail to the applicant/accused by arguing that his name is mentioned in the F.I.R. However, he could not controvert the counsel for applicant regarding his arguments over the applicability of section 295-A, P.P.C. in the present case in terms of section 196, Cr.P.C.

5. We have heard the arguments of the learned counsel for the respective parties and perused the material available on the record.

6. The tentative appraisal of evidence procured by the prosecution against the applicant/accused shows the applicant/ accused has been booked for the offences under sections 295-A, 296, 298, 341, P.P.C. read with section 9 ATA 1997 & 3 WPR.C. Excepting section 295-A, P.P.C., the punishment provided for remaining offences is less than 07 years, by virtue of which the offence alleged against the applicant/accused does not fall within Prohibitory Clause of 497(1), Cr.P.C. As far the applicability of section 295-A, P.P.C. is concerned, it is yet to be established against the accused during the trial, as prima facie it appears that requirement of section 196, Cr.P.C. was not fulfilled by the complainant before registration of the case. For ready reference and elucidation section 196, Cr.P.C. is reproduced herewith:-- "

196. Prosecution for offences against the State. No court shall take cognizance of any offence punishable under Chapter-VI or IXA of the Pakistan Penal Code (except section 127), or punish-able 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".

7. The learned counsel appearing for the State, during his arguments conceded to the above proposition of law and stated that so far no sanction as envisaged under section 196, Cr.P.C. has been obtained for the trial of present case. The prosecution case also shows that though the Police had an advance information about the incident, but no efforts, on the part of complainant, appear to have been made to procure the attendance of private persons to witness the proceeding. The perusal of F.I.R. also shows that at the spot number of people were present despite that all the formalities were completed in presence of only police officials. No doubt the police officials are as good witnesses as the private one, but when the whole case hinges upon the evidence of police officials without any independent corroboration, the due care and caution has to be taken to rule out the chances of false implication. Admittedly, the applicant/accused was not arrested from the spot inspite of the presence of complainant along with his subordinate staff and the explanation forwarded by the complainant in the F.I.R. for not arresting the accused from the place of incident, does not appear to be confidence inspiring.

8. Under these circumstances we are of the view that prima facie the applicant/ accused has been able to make out his case for grant of bail, which accordingly is granted to him subject to his furnishing a solvent surety in the sum of Rs.50,000 and P.R. Bond of like amount to the satisfaction of the trial Court.

9. Needless to mention that above observations are tentative in nature. Trial Court shall not be influenced by such observations while deciding the case on merits.

10. The bail application in hand stands disposed of in above terms. MWA/R-20/Sindh Bail granted.