MAZHAR ABBASS vs STATE and another
This is a criminal petition seeking post-arrest bail in a case registered under Sections 298-A and 295-A of the Pakistan Penal Code 1860, read with Section 3 of Ordinance II of 1965, concerning allegations of using derogatory remarks against revered religious personages and creating sectarian hatred. The core legal questions involve whether the mandatory statutory bar regarding prior permission under Section 196 of the Code of Criminal Procedure 1898 was violated and whether the offences fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court accepted the petition and granted post-arrest bail to the petitioner. The Court held that since no prior permission or order was obtained from the competent authority before launching the investigation or taking cognizance, the matter warranted further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, and that the maximum sentence for the invoked offences did not fall within the prohibitory clause of Section 497.
- Whether prior permission is required under Section 196 of the Code of Criminal Procedure 1898 before initiating an investigation for an offence under Section 295-A of the Pakistan Penal Code 1860?
- Does an offence punishable with a maximum sentence of three years fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can bail be granted on the grounds of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when affidavits from multiple sects refute the allegations?
- Section 295-A, Pakistan Penal Code 1860
- Section 298-A, Pakistan Penal Code 1860
- Section 196, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
The petitioner seeks post arrest bail in case FIR No, 545/2010, dated 17.12.2010, under Sections 298- A/295-A PPC, read with Section. 3 of the Ordinance, II of 1965, registered at P.S. Taunsa Sharif District D.G. Khan.
2. Briefly stated the prosecution version as set forth in the FIR is that on 17.12.2010 at about 6-15 p.m., the petitioner on the loud speaker hurled abuses and derogatory remarks in respect of wives (Umehat-ul-Momineen) and Companions, of the Holy Prophet (PBUH) and thus has outraged the religious feelings of the Muslims and also flared up the sectarian disharmony and hatred.
3. Learned counsel for the petitioner has contended that the petitioner is highly educated person and is serving as Head Master of a Government School, who has been involved in the false case due to sectarian ill-will; that a large number of 'Sunni' and `Shai' Muslims have submitted affidavits during the investigation, whereby they have categorically stated that they heard the speech delivered by the petitioner and no abuse or derogatory remark was passed by him that the offence punishable under Section 295-A PPC is non-cognizable in view of the provisions of Section 196 Cr.P.C. and that no permission has been obtained before lodging the FIR and that maximum sentence for the offence punishable under Section 295-A PPC is three years so the same does not fall within the prohibitory clause of Section 497 Cr.P.C. In support of the contentions raised reliance is placed on PLD 2005 Lahore 631 and 2007 P.Cr.L.J. 342.
4. Learned DPG and learned counsel for the complainant have vehemently opposed the petition. It is contended that no prior permission to register the case under Section 295-A PPC is required and the same is needed only before beginning the investigation or commencement of the trial; that request for grant of permission has been made vide letter dated 26.1.2011 and the same is awaited and that the petitioner created sectarian hatred by using derogatory remarks and hurling abuses against the holy personages so he is not entitled to the concession of bail. In support of the contentions raised reliance is placed on 2007 P.Cr.LJ. 864, 2006 SCMR 483 and 2006 P.Cr.LJ. 1564.
5, Admittedly, no order was obtained before launching the investigation of the case under Section 295-A PPC and placing the other matters in this regard before the trial Court for its consideration.
The cognizance is taken on application of judicial mind on the matter placed before the Court. In spite of letter dated 26.1.2011, no permission has been granted till today by the competent authority and this fact shows that investigation had commenced and the trial Court had taken the cognizance against the provision of Section 196 Cr.P.C. which is enacted in order to eradicate the possibility of false implication as the same is not uncommon due to sectarian feelings in our society. Many persons belonging to Ahl-e-Sunnat-wal-Jamat in addition to the persons belonging to "Shia Sect" had submitted affidavits, wherein they had categorically refuted the allegations leveled by the complainant against the petitioner. In these circumstances, the allegations against the petitioner clearly need further probe and inquiry within the meanings of Section 497(2) Cr.P.C.
Maximum sentence for the offence punishable uncle Section 298-A PPC is three years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C.
6. For the reasons supra, the petition is accepted and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 200,000/- with one surety in the like amount to the satisfaction of the learned trial Court.