2011 P Cr (PLP)

IJAZ AHMED, J.

The petitioner seeks post-arrest bail in case F.I.R. No. 360, registered at Police Station Pind Dadan Khan, District Jhelum, on 9-11-2010 for offences under sections 295-A/298-A, P.P.C.

2. The prosecution story is that on the day of occurrence, the complainant along with the witnesses visited the shop of the petitioner in order to purchase the cloth. The petitioner put the light on. The complainant said, that he should forget the lights. The petitioner responded that the light is needed here as the light of `Aal-e-Muhammad' will he required in the grave. The parties kept on adding to their diverse versions, which allegedly ended in the abuses hurled by the petitioner against the Companions of the Prophet (peace be upon him) and the Umat-ul-Momeneen (Raziallah Anha) the wife of the Prophet (peace be upon him).

3. The learned counsel for the petitioner contends that a criminal case under sections 295-A and 293-A, P.P.C. could not be registered except upon a complaint made by an order of or under authority from the Central Government or Provincial Government concerned on some officer empowered in this behalf by either of the two governments. He places reliance on Zafar Iqbal v. The State (2009 YLR 1531), Mst. Sardar Bibi v. The State (2007 PCr.LJ 342), Abdul Razzaq v. The State (PLD 2005 Lahore 631) and Bashir Ahmad v. The State (2000 PCr.LJ 902). Further contends that the petitioner has been falsely involved in this case; the complainant and his companions hale from Tehsil Rawalpindi. They have no occasion to visit The shop of the petitioner in Pind Dadan Khan in order to purchase the cloth; that the flow of the events does not lead to the concluding episode i.e. hurling abuses; that the sentences attributed to the petitioner could not be so easily tolerated by the followers of any faith; that in fact the instant case has been registered out of the sectarian hatred that persists in the society.

4. On the other hand, the grant of bail is opposed by the learned counsel for the complainant and by the learned DPG. It is contended that the bar contained in section 196, Cr.P.C. is relatable to the cognizance to be taken by the court and does not in any way relate to the right of the private persons to report the matter to the police and does not hinder the police to register a criminal case accordingly. He places reliance on Sarfraz Ahmad and 7 others v. The State (1992 PCr.LJ 2346) and Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police City Division, Lahore and 9 others (2007 PCr.LJ 864). Further contends that the arguments advanced by the learned counsel for the petitioner that since no altercation took place, therefore, it cannot be believed that the parties had exchanged the sentences and the petitioner had hurled abuses, have no force.

5. I have heard the learned counsel for the parties and have also gone through the record. The question regarding the registration of case under sections 295-A/298-A, P.P.C. by a private person or without the authority of the government, requires deliberations. The prohibition contained in section 196, Cr.P.C. is similar to that contained in section 195, Cr.P.C. Both the sections put an embargo on the court from taking cognizance which in fact is its attribute, of any of the offences punishable under the said sections. It does not bar the recording of an information furnished by any person which would culminate in the registration of a criminal case. An F.I.R. registered in consequence of any information received orally or in writing otherwise than by the order or under the authority from the government or some officer shall not be a nullity in law. The police officer shall take all the steps that are required to be taken after the receipt of information under section 154, Cr.P.C. Any irregularity at this stage would be curable. Recording of F.I.R. and taking of the cognizance are two separate concepts, roomed in two separate compartments. The first compartment requires the immediate steps to be taken while the second compartment does not require the immediate steps. Before taking the cognizance of a case any irregularity incurred that does not vitiate the trial, may be rectified. The sanction for prosecution of the case in the instant case was given by the DCO on 25-3-2011 fulfils the requirement of law. I agree with the arguments advanced by the learned counsel for complainant and the judgments relied by him. The arguments of the learned counsel for the petitioner are repelled. I with all humility disagree with the judgments in Abdul Razzaq, Mst. Sardaran Bibi and Zafar Iqbal (supra) referred to by the learned counsel for the petitioner as the said judgments are not in consonance with the provisions of sections 195 and 190, Cr.P.C. The judgment referred to Bashir Ahmad v. The State (supra) supports the arguments of the learned counsel for the complainant that it bars taking of the cognizance only and not the registration of the case.

6. The flow of events, however, suggests that the case against the petitioner is that of further inquiry. The smooth exchange of the hot words by both the parties and pocketing of the abuses by the complainant hurled by the petitioner is beyond the conception. There is a possibility that the instant case has been registered on account of the hatred and the intolerance that both the sects nurse against each other. In the circumstances the petitioner is admitted to bail subject to his furnishing bail bonds in the .sum of Rs.2,00,000 (Rupees two hundred thousand only) with two sureties each' in the like amount to the satisfaction of the trial Court. N.H.Q. /S-98/L Bail allowed.