ABDUL RAZZAQ Versus State

ORDER

The petitioner has filed this application for post-arrest bail through the learned counsel in F.I.R. No.115 dated 31-3-2005, under sections 295/295-A, 298, P.P.C. at P.S. Shorkot City, District Jhang.

2. According to the F.I.R., the complainant is an Imam in Jamia Masjid Farooqia situated at Mauza Kakki-Nau Doaim for the last six months, whereas petitioner is residing opposite to the mosque. According to the complainant, the petitioner converted from Islam to Qadiani. The complainant was studying religious books in the mosque after Eysha prayers on 29-3-2005, when petitioner suddenly entered into the mosque and asked complainant as to what was he reading? He also uttered few words against the religion of the petitioner and 'tore the books which the complainant was reading. The petitioner forcibly gave three journals concerning Qadianiat to the complainant to read them. On refusal of the complainant, the petitioner slapped and abused him. The P.Ws. intervened and saved the complainant.

3. The learned counsel for the petitioner submits that case against the petitioner is false. He adds that even bare reading of the F.I.R. is sufficient to believe that sections 295 and 298, P.P.C. are not attracted at all. He also submits that cognizance of this case cannot be taken by any Court in view of provisions of section 196, Cr.P.C., therefore, this F.I.R. is void ab initio. He also submits that no recovery has been effected from the complainant.

4. On the other hand, the learned counsel for the complainant submits that sections 295, 295-A and 298, P.P.C. are fully attracted. He submits that section 196 refers to jurisdiction of Court to take cognizance but it does not stop police to register an F.I.R. He also contends that recovery of books from the petitioner has been effected. In addition to that he argued that petitioner himself confessed his guilt during the investigation. The learned counsel also informed the Court that charge has been framed against the petitioner, therefore, at this stage bail should not be granted.

5. The learned counsel for the State adopts the arguments of the learned counsel for the complainant and adds that investigation in this case has been completed and there is sufficient material against the petitioner to connect him with commission of the offence.

6. I have heard the learned counsel for the parties and also consulted record with their assistance.

7. Section 295, P.P.C. is attracted against a person who destroys, damages or defiles any place of worship or any object held sacred by any class of persons. Reading of the F.I.R. does not indicate that petitioner destroyed, damaged or defiled any place of worship though he was present in the mosque. Exact allegation levelled against petitioner is that he uttered some words against the religion of the complainant and also snatched religious books which were being read by him. That does not amount destruction, damage or defiling of the mosque, a religious place in the context of the present case. Section 295-A, P.P.C. is attracted against a person who deliberately and maliciously insult or attempts to insult the religion or the religious belief of a person or class of persons. This section could be attracted as according to the allegation the petitioner spoke few words against the religion, and also snatched religious books from the complainant. Section 298, P.P.C. is attracted against a person who utters any words or makes any sound in the hearing of a person with intention of wounding the religious faith of that person. Therefore, in the facts of the F.I.R. section 298 could also be attracted.

8. Heading of section 196, Cr.P.C. indicates that for prosecution of certain offences, procedure is provided under section 196, these offences are against the State and include section 295-A. Joint reading of sections 196, Cr.P.C. and 295-A, P.P.C. demonstrate that offence under section 295-A is not an offence against an individual, actually it is against the State, therefore, the procedure requires that Court shall only take cognizance in offence under section 295-A, P.P.C. if the "complaint" is made by order or under authority from the Central D Government or the Provincial 'Government concerned, or some officer empowered in this behalf by either of the two Governments. In the instant case, F.I.R. No.115 of 2005 dated 31-3-2005 has been lodged by Hafiz Muhammad Ramzan son of Muhammad Luqman. There is a distinction between an and a `complaint'. Under section 4(h), Cr.P.C. `complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer. The learned counsel for the complainant submitted in his arguments that challan has already been submitted in this case. The challan is a final report of investigation of Police Officer/Investigating Officer which is submitted by a Police Officer/Investigating Officer in the Court. Therefore, a complaint and an F.I.R. or in other words a final report, submitted by a police officer are distinguishable from each other. Thus, the natural corollary is that in view of provisions of section 196, Cr.P.C. a case cannot proceed on the basis of challan or a final report submitted under section 173, Cr.P.C. by a Police Officer/Investigating Officer pending against the petitioner. When a law requires a certain act to be done in a particular manner, it has to be done in that manner, for its validity.

9. In Criminal Appeal No.239 of 1995, Nasir Ahmad son of Abdul Ghani v. The State (unreported), the appellant was acquitted by my learned brother Kh. Muhammad Sharif J. on the ground that the proceedings could not be launched unless it was so ordered under the authority from the Provincial or Central Government, as the case may be, or some officer empowered in that behalf. His Lordship observed as under:--

"A bare perusal of the above quoted section of the Code of Criminal Procedure would show that as far as section 295-A, P.P.C. is concerned, proceedings could not be launched unless it is so ordered under the authority from the Provincial or the Central Government as the case may be or some officer empowered in that behalf. I have myself scanned the whole record but there is no such sanction for initiation of the prosecution against the appellant, either by the Federal Government, Provincial Government or any officer empowered on behalf of either of the two Governments. So, in view of the bar contained in section 196, Cr.P.C. I am of the considered opinion that the prosecution could not have been launched against the appellant, as such."

10. In a case reported as Bashir Ahmad v. The State 2000 PCr.LJ 902, his Lordship Faqir Muhammad Khokhar, J. (as he then was) discussed the affect of non-compliance of provisions of section 196, Cr.P.C. in greater details. According to his Lordship, the omission to observe the provisions of section 196, Cr.P.C. is illegality and not curable under section 537, Cr.P.C. His Lordship further observed that non-compliance of provisions of section 196, Cr.P.C. render the subsequent proceedings nullity in the eyes of law. For convenience, the relevant portion of the judgment is reproduced as under:-

"6. The question of the effect of want of requisite sanction for an offence as mentioned in section 196, Cr.P.C. was examined by the Courts in a number of cases. In the case of Labh Singh v. Narinjan Das AIR 1925 Lah. 449. Harrisan, J., took the view that in absence of an order by the Government as required by section 196, Cr.P.C. a Magistrate had no jurisdiction to hold a judicial inquiry. In the cases of (Major-General) Fazal-i-Raziq, Chairman WAPDA, Lahore v. Ch. Riaz, Ahmad and the State PLD 1978 Lah. 1082, and Qaiser Raza v. The State 1979 PCr.LJ 758(2) (Karachi), the criminal proceedings under section 295-A, P.P.C. and issuance of process thereafter without the orders of the appropriate Government or any other person authorizes by it were quashed. In Moin Alam v. The State 1993 PCr.LJ 1913, a Division Bench of the Sindh High Court took the view that omission to file a complaint in terms of section 196, Cr.P.C. in the absence of the sanction of the appropriate Government for an offence under section 121-A, P.P.C. was not an irregularity curable under section 537, Cr.P.C. but an illegality vitiating the conviction and sentence by the learned Special Court. In the case of Salman Taseer v. Judge, Special Court (1993 SCMR 71), the criminal proceedings were initiated and the learned Special Court took cognizance of an offence under section 124-A, P.P.C. without the sanction of the Provincial Government or examination of the case by it as required by section 196, Cr.P.C. The Honourable Supreme Court issued notice to the State as to why the petition should not be converted into appeal and be allowed.

7. The learned Judge, Special Court-II, Anti-Terrorism, Bahawalpur, took cognizance of the case, recorded the prosecution evidence, conviction and sentence of the appellant without adverting to the aspect of the absence of the requisite sanction/order as required by section 196, Cr.P.C. for an offence under section 295-A, P.P.C. The entire proceedings by the learned trial Court being nullity in the eye of law liable to the quashed."

11. The individual interest is always subject to collective interest or State interest. In view of the sensitivity of the offence under section 295-A, P.P.C., it has been made an offence against the State instead of offence against an individual, though an individual may also be affected. There is a wisdom that is why, in the general interest of the F people, the Legislature has made offence under section 295-A, P.P.C. as an offence against the State; therefore, right of prosecution has been given to the State instead of leaving it into the hands of private individuals. Hafiz Muhammad Ramzan, complainant of the instant F.I.R. is neither the Central Government nor the Provincial Government. Likewise, he has not been authorized by either of the two Governments. Another aspect of the matter is that even if the FIR. is treated as complaint, it was not registered at the instance of an authorized person. Therefore, it cannot stand a judicial review.

12. The investigation in this case has been completed and challan already submitted. The petitioner has been behind the bars for several months, he is not required anymore for the purpose of investigation and recovery, therefore, no useful purpose will be served if he is further kept behind the bars.

13. Another aspect of the matter which has not been highlighted, even by the learned counsel for the petitioner, is that in case of any offence in respect of which provisions of section 196, Cr.P.C. apply, officer incharge of the investigation in the district may, notwithstanding, anything contained in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of inspector, in which case such police officer shall have the powers referred to in section 155(3). Ordinarily under section 154, registration of an F.I.R. precedes investigation/inquiry of any kind. But in a case which is covered by section 295-A, the law gives a discretionary power to the incharge of investigation in a district to hold preliminary inquiry. This is clear indicator that the legislature has treated an offence falling under section 295-A differently and with care. The learned counsel for the complainant submitted that section 196, Cr.P.C. refers to jurisdiction of Court to take cognizance, but it does not stop police to register an F.I.R. If this argument is examined and analysed carefully, it would show that it has no logic and substance. If registration of an F.I.R. and subsequent investigation does not lead to a successful prosecution, the whole exercise of registration of an F.I.R. followed by investigation would be a futile exercise. I have already given examples of two cases mentioned above. The appeals were accepted on the ground that provisions of section 196, Cr.P.C. were not complied with. Therefore, this contention of the learned counsel for the complainant is devoid of any force.

14. In view of the above discussion, it appears that there are sufficient grounds for further inquiry into the guilt of the petitioner, so his bail is allowed on the execution of furnishing surety bonds in Rs.50,000 with two sureties in the like amount to the satisfaction of the trial Court.

M.B.A./A-528/L Bail granted.