2010 PLP 987 (YLR)

ATTAULLAH KHAN, J.--Petitioner seeks bail in case F.I.R. No.876 dated 22-12-2009 registered under sections 295-A and 295-B at Police Station, Kotwali District Peshawar.

2. The complainant reported the matter to the effect that he along with other person of the Mohallah were present when the petitioner torn the pieces of Sura Yaseen thus teased the sentiment of the people of the locality and was also abusing loudly. On this, the people of the locality were chanting slogans for action against the petitioner. Arguments heard. Record perused.

3. Learned counsel for petitioner contended that the case against the petitioner is lodged in violation of section 196, Cr.P.C. because the offence is against State and not an individual. According to the learned counsel, it is a case of further inquiry in view of the defects in recovery memo and registration of F.I.R.

4. On the other hand, learned State counsel opposed the contention of learned counsel for petitioner and contended that the torn pieces of "Sura Yaseen" etc. have been taken into possession by the police and there is ample evidence to connect the accused with the offence.

5. It appears from the F.I.R. that the same has been lodged by Munir Ahmad, Mohalladar. Now it is to be seen as to whether any illegality has been committed in lodging this F.I.R. under sections 295-A and 295-B, P.P.C. In this connection I would refer to section 196, Cr.P.C. which is reproduced below: Section 196. "Prosecution for offences 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".

6. The offences enumerated in this section are relating to religious affairs. The section of P.P.C. in the above mentioned provision includes sections 295-A and 295-B, Cr.P.C. It is provided therein that these offences shall be reported and cognizance would be taken upon the complaint by the authority of Federal or Provincial Governments. Section 295-A relates to offences where a person deliberately and maliciously insult or attempt to insult religion of a person or of any class of persons. Similar are the contents of section 295-B which relate to offences in which a person wilfully damages copy of Holy Quran or of an extract therefrom. When a person is charged under these two sections of law, it is mandatory that the complaint against such person be filed by Provincial or Federal Government or an officer authorized by them. In this case, the F.I.R, as stated above, reveals that while lodging the same, the provision of section 196, Cr.P.C. has been violated. It was the duty of police to have complied with that provision because the section mentioned above is clear and has no ambiguity.

7. In view of the provision of section 196, Cr.P.C. the case cannot proceed on the basis of a report made by a private person and not by Provincial or Federal Governments. The proceedings could not be launched unless it is ordered under the authority of Federal or Provincial Governments, as the case may be. The record did not contain any sanction or authority letter for initiating prosecution against the petitioner by any of the respective Governments.

8. According to the case titled Bashir Ahmad v. State 2000 PCr.LJ 902, the omission to observe the provision of section 196, Cr.P.C. is illegality and not curable under section 537, Cr.P.C. and render the subsequent proceedings nullity in the eye of law. In this case, though accused/petitioner is nominated with a specific role but legal discrepancies exist as the Investigating Officer was not competent to register a criminal case against the petitioner under sections 295-A and 295-B, P.P.C. for the reason that it is clearly enumerated in section 196, Cr.P.C. that the cases which fell within the scope of sections 295-A and B, P.P.C. were to be registered on the basis of complaint either by the Federal Government or Provincial Government and not by the private individual. In the case in hand, as stated above, the F.I.R. is lodged on the complaint of private person who could not do so. So in this way the registration of F.I.R. and subsequent investigation would not lead to a successful prosecution and the whole exercise of registration of F.I.R. followed by investigation would be a futile exercise.

9. The accused/petitioner was summoned from jail today. He has submitted an affidavit in which he has negated the charges levelled against him. According to him the case against him has been lodged on the basis of misconception.

10. The recovery memo through which the torn pages of Sura Yaseen have been taken into possession, is not witnessed by any public person, in spite of the fact that many persons were available at that time. This is also a legal defect.

11. Keeping in view the illegality in lodging the F.I.R. in violation of section 196, Cr.P.C. marginal witnesses of recovery memo and affidavit, the petitioner has made out a case for further inquiry, hence this petition is allowed and the petitioner is granted bail in the sum of Rs.100,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of learned trial Court. H.B.T./53/P Bail granted.