Form No:HCJD/C-121 - Lahore High Court

Crl. Misc. No.1452-B of 2014
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Form No:HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
Case No:
Crl. Misc. No. 1452-B of 2014
Farooq Haider & 3 Others
S.No. of order/
proceeding
Date of order/
proceeding
08.04.2014
VS
The State etc.
Order with signature of Judge, and that of parties or counsel,
where necessary
Mr. Shahzad Hassan Awan, Advocate with petitioners.
Ch. M. Akbar, DPG for the State.
Through this petition under section 498, Cr.P.C.,
Farooq Haider, Shahab-ud-Din, Muhammad Ashraf and
Arshad Ali petitioners have sought pre-arrest bail in case FIR
No. 114 dated 23.02.2014, registered under section 295-A
PPC read with Section 16 MPO at Police Station Mumtaz
Abad District Multan.
2.
Prosecution version divulged in the FIR authored by
Muhammad Anwar Irshad C/889 is that the petitioners
alongwith others were making slurred speeches while
extending threats in order to outrage the religious feelings of
“Qadianis” and “Shias”.
3.
It is contended by the learned counsel for the
petitioners that the petitioners have been falsely involved in
this case and their names inducted in the FIR with mala fide
intention by the police.
4.
Conversely, learned Deputy Prosecutor General
opposes the bail application on the ground that names of the
petitioners are well versed in the FIR with specific allegation
and they are not entitled for this extra ordinary concession of
pre-arrest bail.
5.
Heard. Record perused. It is noted that names of the
petitioners are duly mentioned in the FIR leveling the
Crl. Misc. No.1452-B of 2014
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allegation of delivering speech with intention to outrage the religious
feelings of the other sects. It is further noted that no specific allegation
spelled out from the bare reading of the FIR against the petitioners
regarding speech made by them, particularly. It is further observed that
the alleged occurrence had taken place on 1.2.2013 but the report under
section 154, Cr.P.C. was made on 23.2.2014 with the delay of one year
and 22 days and this inordinate delay has not been explained by the
prosecution. The prosecution has lodged the FIR while violating the
provisions of Section 196, Cr.P.C. which is reproduced hereunder:-
196. Prosecution for offences against the State.
No Court shall take cognizance of any offence
punishable under Chapter VI or IXA of the Pakistan
Penal Code (except section 127), or punishable
under section 108A, or section 153A, or section
294A, or section 295A or section 505 of the same
Code, unless upon complaint made by order of, or
under authority from, the Central Government, or
the Provincial Government concerned, or some
officer empowered in this behalf by either of the two
Governments.
6.
Heading of section 196, Cr.P.C. connotes the procedure for the
prosecution of certain offences. These offences are against the State and
include section 295-A, PPC. Joint reading of sections 196, Cr.P.C. and
295-A, PPC demonstrates that offence under section 295-A is not an
offence against an individual, but indeed against the State, therefore, the
procedure entails that Court shall only take cognizance in offence under
section 295-A, PPC if the complaint is made by order or under authority
either from the Central Government or the Provincial Government
concerned, or some officer empowered in this behalf by either of the two
Governments.
7.
The omission to observe the provisions of Section 196, Cr.P.C. is
illegality and not curable under section 537, Cr.P.C., and this provision is
mandatory.
8.
In a case reported as “Bashir Ahmad v. The State” (2000
P.Cr.L.J. 902), his Lordship Faqir Muhammad Khokhar, J. (as he then
was) discussed the effect of non-compliance of provisions of section 196,
Cr.P.C. in greater length. According to his Lordship, the omission to
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Crl. Misc. No. 1452-B of 2014
observe the provisions of section 196, Cr.P.C. is an 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 eye 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 Vs. 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 Vs. Ch. Riaz Ahmad and the State PLD
1978 Lah. 1082, and Qaiser Raza Vs. 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 Honorable
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, AntiTerrorism, 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.
There is no denying the fact that purview of pre-arrest bail is narrow but
the same not to be made narrower and it should be effectively stretched to
its limits, where an innocent person faces danger of being arrested by the
police for some nefarious purpose.
8.
For what has been discussed above, case of the petitioners falls well
within the purview of sub-section (2) of Section 497, Cr.P.C. Hence, this
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Crl. Misc. No. 1452-B of 2014
bail application is accepted and ad-interim pre-arrest bail already granted
to the petitioners vide order dated 28.3.2014 is hereby confirmed subject
to their furnishing fresh bail bonds in the sum of Rs. 50,000/- each with
one surety each in the like amount to the satisfaction of the learned trial
Court.
(SIKANDAR ZULQARNAIN SALEEM)
JUDGE
APPROVED FOR REPORTING
JUDGE
*Maqsood*

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