NAHEED KHAN and 5 others vs THE STATE and anothers
This is a post-arrest bail petition filed by six petitioners seeking bail in case F.I.R. No. 152 dated 10-9-2011, registered under sections 153-A and 298 of the Pakistan Penal Code 1860 at Police Station City Talagang, District Chakwal. The core legal question revolves around whether the petitioners are entitled to post-arrest bail given that mandatory procedural requirements under the Code of Criminal Procedure 1898 were allegedly violated and the maximum sentence for one of the offences is low. The Lahore High Court held that since no prior permission from the competent authority was sought as required by section 196 of the Code of Criminal Procedure 1898 read with section 153-A of the Pakistan Penal Code 1860, the proceedings were vitiated, and further considering the quantum of sentence under section 298 and that the petitioners were no longer required for investigation, sufficient grounds existed to grant bail. The court laid down the principle that failure to fulfill mandatory statutory conditions for taking cognizance renders subsequent proceedings coram non judice.
- Whether failure to obtain prior permission from the competent authority under section 196 of the Code of Criminal Procedure 1898 makes proceedings under section 153-A of the Pakistan Penal Code 1860 coram non judice?
- Are petitioners entitled to post-arrest bail when the maximum sentence for the charged offence is one year and they are no longer required for police investigation?
- Does the distribution of pamphlets containing hatred language without prior statutory sanction warrant the grant of post-arrest bail?
- Section 153-A, Pakistan Penal Code 1860
- Section 298, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 196, Code of Criminal Procedure 1898
ORDER
' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition, (i) Naheed Khan, (ii)
Muhammad Shakeel, (iii) Jamil Ahmed, (iv) Malik Azeem-ul-Hassan, (v) Malik Ejaz Ali; and (vi)
Muhammad Saeed, petitioners have sought for their post-arrest bail in case F.I.R. No,152, dated 10- 9-2011, offence under sections 153-A, 298, P.P.C., registered at Police Station City Talagang, District Chakw al .
2. Allegation against the petitioners, in brief, is that on account of case against Sufi Muhammad Ishaque, they distributed pamphlets containing unhealthy language thereby wounding the religious feelings, among the inhabitants of the area with an intent to create enmity between Dewbandi and Brelvi sects.
3. Learned counsel for the petitioners contends that the petitioners are innocent and have falsely been involved in the instant case. It is argued that none of the petitioners is complainant or even witness of case F.I.R. No,106 filed against Sufi Muhammad Ishaque, hence ingredients of section 153-A, P.P.C., are not made out. Learned counsel vehemently submits that even otherwise offence under section 153-A, P.P.C., is non-cognizable and arrest of the petitioners in the instant case is against the procedure. Learned counsel further argues that the case against the petitioners does not attract prohibition contained in subsection (1) of section 497, Cr.P.C, therefore, they are entitled 'to the concession of bail.
4. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed this petition with the averments that the petitioners are nominated in the F.I.R. It is argued that recovery of pamphlets containing unhealthy language has been affected from them, who tried to create hatred between Brelvi and Dewbandi sects. Learned counsel for the complainant vehemently submits that the petitioners have also been found guilty during the course of investigation, therefore, they are not entitled to the concession of bail.
5. Arguments advanced pro and contra have been heard. I have also perused the record available on file.
6. The allegation against the petitioners is that they were delivering pamphlets containing unhealthy/hatred language thereby wounding the religious feelings, among the inhabitants of locality. Admittedly before lodging the case, no permission from competent authority was sought and when provisions of section 153-A, P.P.C., are read together with section 196, Cr.P.C., it is crystal that violation of mandatory provisions has been committed. As has been held in the case of Bashir Ahmed v. The State (2000 PCr.LJ 902), where mandatory condition for the exercise of jurisdiction is not fulfilled, then the entire proceedings that followed would become coram non judice. The sentence for offence under section 298, P.P.C., is one year. Needless to mention that the petitioners are behind the bars since the date of their arrest and no more required by the police for further investigation.
7. All these facts when put side-by-side persuade this Court to believe that sufficient grounds exist to enlarge the petitioners on post-arrest bail. Resultantly, the instant petition is accepted and the petitioners are admitted to bail after arrest subject to their furnishing bail bonds in the sum of Rs, 1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.