Basharat Din Versus State
Order
Ali Baig, C.J .--- The petitioner/accused namely Basharat Din has filed the instant bail petition under section 497 Cr.P.C for grant of post arrest bail in criminal case bearing FIR No. 46/2025 for offences under sections 295-A, 153-A P.P.C registered at Police Station City Astore.
2. Briefly stated the allegations against the petitioner / accused as per contents of FIR's are that the petitioner/accused in his own Social Media I.D had posted some sentiments of derogatory and disgraceful remarks against sentiments of Shia Sect and this ignominious act of the petitioner/ accused has hurt the people of Shia Sect of the area and on the other hand the petitioner/accused has tried to spoil the peaceful environment of District Astore.
3. The learned counsel for the petitioner/accused argued that the accused/petitioner is innocent and the local police in league with the complainant has falsely involved the petitioner in the instant case. The learned counsel for the petitioner/accused further argued that local police have no jurisdiction to investigate the matter as the matter purely falls within the domain of FIA Cyber Crime Wing. The learned counsel for the petitioner/accused further argued that there is unexplained delay in lodging of FIR and challan of the case has yet not been submitted in the court of competent jurisdiction. The learned counsel for the petitioner/accused further argued that the prosecution has not fulfilled the condition of section 196 Cr.P.C before lodging FIR. The learned counsel for the petitioner/accused further argued that no forensic report is available on the record to connect the petitioner/accused with the alleged crime. The learned counsel for the petitioner/ accused further argued that the offences with which the petitioner/accused is charged are not cognizable offences. The learned counsel for the petitioner/accused further argued that the alleged offences do not fall within the prohibitory clause of section 497 Cr.P.C. and in such like case grant of bail is a rule and refusal is an exception, hence, the accused/petitioner is entitled for concession of bail. The learned counsel for the petitioner/accused further argued that the case of petitioner/accused requires further inquiry, hence, the petitioner/accused may be released on bail. In support of his arguments, the learned counsel for the petitioner/accused has relied upon judgments of superior Courts reported as 2023 PCr.LJ 114 Islamabad, 2025 PCr.LJ 526 Sindh and 2017 YLR 1665 G.B Chief Court.
4. On the other hand, the learned Addl. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that accused/petitioner is directly nominated in the promptly lodged FIR. The learned Addl. Advocate General further contended that the mobile of the petitioner/accused has been sent for forensic laboratory report and the report is awaited. The learned AAG further argued that the offences reflected in the FIR are not bailable and falls within ambit of the prohibitory clause of section 497 Cr.P.C. The learned Addl. Advocate General further submitted that the alleged offences are against the particular community/sect and one heinous nature and petitioner/accused is not entitled for concession of bail. The learned AAG further argued that generally local police have jurisdiction and authority to investigate the matter where a cognizable offence is committed. The learned AAG further submitted that the prosecution has collected sufficient material against the petitioner/accused to connect him with the alleged crime, hence this petition is meritless and same is liable to be dismissed in the interest of justice. In support of his arguments, the learned Addl. A.G has relied upon judgment of superior Court reported as 1997 PCr.LJ 836.
5. I have heard and considered the arguments advanced by the learned counsel for the parties with due care and perused the available record of the case with their able assistance.
6. From perusal of record it transpires that section 153-A P.P.C is admittedly bailable, whereas legal requirement under section 196 Cr.P.C has not been fulfilled before lodging the of FIR by the complainant as section 196 of the Cr.P.C provides that no court shall take cognizance of any offence punishable under sections 108-A, 153-A, 294-A and 295 -A or section 506 Cr.P.C unless upon complaint made by order or under authority from the Federal Government or the Provincial Government concerned. In the instant case no complaint has been made by order of or under authority from either Government. Moreover, the blasphemous material was allegedly posted by the accused/petitioner on his social media I.D which is cyber crime and falls within the domain of FIA and the complaint should had submitted/filed complainant against the accused/petitioner before FIA Cyber Crime Wing instead of lodging FIR with ordinary police station Astore. Moreover, offences under sections 295-A and 153-A P.P.C are non cognizable offence, hence, the case of petitioner/accused falls within the ambit of further inquiry under section 497 (2) Cr.P.C and when a case become of further inquiry and the accused can claim bail as matter of right and not as a grace or concession.
7. Furthermore, punishment provided for the offence under section 295-A Cr.P.C is imprisonment of either description for a term which may extended to ten years or with fine or both. It is settled principle of law that offences in relation to which fine has been prescribed as an alternative punishment, the lesser punishment is to be considered for grant of bail.
8. For the foregoing reasons this bail petition is accepted and consequently the petitioner/accused is admitted to post arrest bail, subject to his furnishing of bail bonds in the sum of Rs. 500,000/- (Five lac only) with two sureties each in the like amount to the satisfaction of the learned Trial Court/ Judicial Magistrate at Astore.
9. The observations made herein above are tentative in nature and the same shall not influence the merits of the case during trial of case before the learned Trial Court. The learned Trial Court shall decide the case of the petitioner strictly on merit. File.
JK/12/GB Bail allowed.