ZAHID AKHTAR vs STATE and another

ORDER

Petitioner Zahid Akhtar seeks post-arrest bail in case FIR No, 502/2011 dated 12.06.2011 under Section 295-A, PPC registered at Police Station City Khan Pur, District Rahim Yar Khan.

2. Precise facts of the case, as contained in the FIR, are that on 12.06.2011, in the area of Normal School, the complainant received spy information that the petitioner was selling books wherein malicious articles had been published to infringe the feelings of religious believers of Muslims relating to one school of thoughts.

3. Learned counsel for the petitioner contends that there are reasonable grounds to believe that no offence has been committed by the petitioner, that the FIR is concocted and based on mala fide on the part of complainant, that the petitioner neither installed any stall of books nor sold any book to any person, that neither the petitioner is author of any book nor he is publisher of the same; that as per FIR the occurrence took place in a thickly populated area but no PW from that locality has been associated with the recovery proceedings; that complainant of this case is SHO, who has violated the provisions of Sections 103 and 196 Cr.P.C. while registering the FIR; that there is nothing on record to connect the petitioner with the commission of crime; that the petitioner is behind the bars since his arrest and is no more required by police for further investigation; hence, he is entitled to confession of bail.

4. On the other hand, learned Deputy Prosecutor General has opposed the bail petition and prayed for its dismissal.

5. Arguments hard. Record perused.

6. The allegation against the petitioner, as per FIR is that he was selling books containing malicious articles to infringe the religious feelings of one sect of the Muslims. For facility of reference provisions contained in Section 295-A PPC are reproduced as under:-- "295-A. Deliberate and malicious act intended to outrage religious feelings of any class by insulting its religion or religious beliefs.--Whoever, with deliberate and malicious intention of outraging the religious feelings, of any class of the citizens of Pakistan, by words either spoken or written or by visible representation insults or attempts to insult the religious or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extended to [Ten] years, or with fine or with both."

To make the case further clarified in case titled "Abdul Razzaq vs. The State" PLD 2005 (Lah.) 631) it has been held that: "Joint reading of Section 196 Cr.P.C. and S. 295-A PPC would demonstrate that the ofiL. under Section 295-A PPC was not an offence against an individual, actually it was against the State, therefore, the procedure required that Court shall only take cognizance in offence under Section 295-A PPC if the "complaint" was made by order or under authority from the Central Government or the Provincial Government concerned, or some officer empowered in that behalf by either of the two Governments-individual interest was always subject to collective interest or State interest-- Distinction existed between an "FIR" and a complaint--"Complaint under S. 4(h), Cr.P.C. meant the allegation made orally or in writing to a Magistrate, with a view to his taking action under Cr.P.C. that some person, whether known or unknown, had committed an offence, but did not include the report of the Police Officer--Case under S. 295-A PPC could not proceed on the basis of challan or a final report submitted under S. 173 Cr.P.C. by a police officer/Investigating Officer pending against the accused in view of S. 196 Cr.P.C. Omission to observe the provisions of S. 196 Cr.P.C. were Illegaly not curable under Section 537 Cr.P.C.--Non-compliance of S. 196 Cr.P.C. would render the subsequent proceeding nullity in the eye of law--When law required a certain act to be done, in a particular manner, it had to be done in that manner, for its validity."

Provisions of Section 295-A PPC, is attracted against a person who deliberately and maliciously insults or attempts to insult the religion or the religious belief of a person or class of persons but FIR does not indicate that the petitioner deliberately and maliciously insulted or attempted to insult the religion or/of the religious belief of a person or class of persons. He was just selling the alleged books. He is neither publisher, nor author of the books. The I.O. has not associated any publisher or author of said book which were taken into possession by the police with the investigation and has only encircled the petitioner in this case. The legislature has treated an offence falling under Section 295-A PPC differently and with care, therefore, in view of above situation, the ingredients of Section 295-A PPC prima facie are not fulfilled. Even otherwise, the provisions of Section 196 Cr.P.C. have not been complied with. Further-more, the petitioner has no previous record of such like cases. The alleged recovery was not effected on his pointation. He was arrested on 12.06.2011 but not from the spot. Although the challan has been sent to the prosecution branch but the same has not yet been received in the Court of competent jurisdiction and trial of the case is not in sight. The alleged place of recovery is thickly populated area but no private witness from the locality has been associated with the recovery proceedings. Meaning thereby provisions of .Section 103 Cr.P.C. have been violated. In view of above, case against the petitioner is one of further inquiry under Section 497(2), Cr.P.C. Besides, the petitioner is behind the bars and no more required by police for further investigation. Keeping the petitioner behind the bars for an indefinite period would not serve any useful purpose of prosecution.

7. For what has been discussed above, instant petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of learned Trial Court.