MUHAMMAD ASHRAF and another vs THE STATE
The petitioners sought post-arrest bail in a case registered under section 295-A of the Pakistan Penal Code 1860 for allegedly distributing pamphlets that injured religious feelings. The core legal question was whether a criminal case under section 295-A can be initiated and cognizance taken without a complaint authorized by the Federal or Provincial Government in terms of section 196 of the Code of Criminal Procedure 1898. The Lahore High Court held that the provisions of section 196 of the Code of Criminal Procedure 1898 are mandatory, and a prosecution under section 295-A without such official sanction or complaint is without legal authority. Consequently, the court admitted the petitioners to post-arrest bail. The key principle laid down is that compliance with the bar against taking cognizance under section 196 of the Code of Criminal Procedure 1898 without government sanction is mandatory for offences under section 295-A of the Pakistan Penal Code 1860.
- Whether section 196 of the Code of Criminal Procedure 1898 is mandatory in nature for offences under section 295-A of the Pakistan Penal Code 1860?
- Can a court take cognizance of an offence under section 295-A of the Pakistan Penal Code 1860 upon the report of a private person without government sanction under section 196 of the Code of Criminal Procedure 1898?
- Are proceedings conducted in violation of section 196 of the Code of Criminal Procedure 1898 considered without legal authority?
- Section 295-A, Pakistan Penal Code 1860
- Section 196, Code of Criminal Procedure 1898
ORDER
' Muhammad Ashraf and Asif Ali petitioners through this petition seek bail after arrest in case F.I.R.
No.344 dated 29-8-2004 under section 295-A, P.P.C. Registered at Police Station City A-Division Kasur. According to prosecution allegation set up in the F.I.R. The petitioner were issuing pamphlets, which injured the religious feelings and sentiments of the Muslims and as well as contradicted the teachings of Islam. The case was registered on the report of one Dr. Abdul Razzaq who had seen the petitioner distributing the said pamphlets.
2. It has been pleaded on behalf of the petitioners that the case has been registered in violation of section 196, Cr.P.C. Which stipulates that 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 or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaints madg 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, whereas in this case no such complaint had been made by any competent authority or the prosecution of the petitioner had not been sanctioned by the said authorities.
3. The police record reveals that while lodging this case no complaint had been made by order of any authority from the Federal Government or the Provincial Government and it was lodged on the report of a private person. It has been held in Ijaz Ahmad v. Muhammad Azam (2003 PCr.LJ 1458 Lahore) and Bashir Ahmad v. The State (2000 PCr.LJ .902 Lahore) that the provision of section 196, Cr.P.C. Is mandatory in nature and unless they are complied with the prosecution under section 295-A, P.P.C. Cannot be valid. As the F.I.R. In this case has been lodged in violation of the mandatory provisions of section 196, Cr.P.C., therefore, the entire proceedings conducted up till now appears to be without legal authority and as such the petitioner is admitted to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.