2009 PLP 1531 (YLR)

KHURSHID ANWAR BHINDER, J.

The petitioner seeks post-arrest bail in case F.I.R. No. 354/2008 dated 30-6-2008, registered under sections 295-A/296, 337-A2/A1, 337L2/148/149, P.P.C. at -Police Station Saddar Arifwala District Pakpattan Sharif.

2. Precise allegations against the petitioner are that he had entered the Mosque and had passed derogatory remarks to the Imam of the Mosque as they belonged to Bralvi sect and had also caused injuries to Munir Ahmed.

3. Learned counsel for the petitioner submits that at the very outside local police is not competent to register a criminal case against an offence under sections 295-A and 296, P.P.C. as there is prohibition enunciated in section 196, Cr.P.C., according to which criminal case against any person can only be registered if there is complaint either by Federal Government or Provincial Government but in the instant case there is no such complaint by either of the governments regarding the Commission of offence by the petitioner, therefore there is clear mala fide on the part of. Investigating Officer to register a criminal case against the petitioner at the behest of the complainant which he was not competent to do. He further submits that an altercation took place between the parties on a religious issue in which both the parties suffered injuries and in such scenario it is not known as to which one was the aggressor party. Injuries attributed to the petitioners have been declared 337-L(ii) which is bailable and non-cognizable offence. As per MLR injuries sustainable by Munir Ahmed are only attributed to petitioner No.1. Muhammad Shahid, which fall in the category of 337-L(ii). He further submits that Muhammad Afzal, Petitioner No.2, also suffered five injuries and Muhammad Shahid, petitioner No.1 suffered three injuries in an altercation by the complainant side. In this context, the petitioners also got cross version recorded which was subsequently found false and was illegally rejected by the Investigating Officer due to influence exerted by the complainant party. He further states that co-accused Muhammad Shahid etc., had already granted bail by this Court and role of petitioner is identical to that of co-accused persons, hence rule of consistency demands that the present petitioner be also allowed bail as his role is not in any manner distinguishable from the co-accused.

4. Learned counsel for the complainant opposes bail application of the petitioner and submits that the learned counsel for the petitioner has not been able to prove any mala fide on the part of the complainant against the petitioner. Cross version recorded by the petitioner was found false. He lastly submits that recovery of crime weapon is yet to be effected from the petitioner, therefore, they do not deserve any leniency of concession of bail at this stage.

5. Learned D.P.G. adopts the arguments advanced by the learned counsel for the complainant.

6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned D.P.G. and have also perused the record. The petitioner is no doubt nominated in the F.I.R. with specific role but I am afraid there are certain legal discrepancies in this case. At the first instance Investigating Officer of the above said case was not competent to register a criminal case against the petitioners under sections 295-A and 296, P.P.C. for the reason that it is clearly enumerated in section 196, Cr.P.C. that the cases which fall in the category of sections 295-A and 296, P.P.C. are to be registered on the complaint either by Federal Government or Provincial Government and not by private individuals. In the instant case complaint has been lodged by a private person therefore, complaint in this case could not have been lodged by the complainant. Furthermore, altercation took place in the mosque on passing derogatory remarks against the persons belonging to Bralvi sect and in that altercation both the parties suffered injuries and in such like situation when both the parties suffered injuries. It is not exactly known at this stage as to which one was the real aggressor party. It is to be seen at the time of trial, of the case on the basis of evidence as to which one was the aggressor party and only tentative assessment is to be made at the bail stage.

7. As far as mala fides are concerned, at first instance mala fides on the part of the police officer are established beyond any shadow of doubt when he could not have registered a criminal case against the petitioner about which he was not competent to do so. As regards mala fide on the part of the complainant, it has also been established that there is a dispute between both the religious sects which ultimately led to the present case, therefore, mala fide on the part of the complainant has also been established above all, co-accused Muhammad Shahid etc. had already been granted bail by this Court and role of petitioner is identical to that of co-accused persons, hence rule of consistency demands that the present petitioner be also allowed bail as his role is not in any manner distinguishable from the co-accused persons.

8. Under the circumstances petitioner's case is that of further inquiry into his guilt. I, therefore, admit him to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the learned trial Court/ Illaqa Magistrate. Petition stands disposed of. H.B.T./Z-39/L Bail granted.