1. ' MAQBOOL AHMED AWAN, J.---Applicant Dr. Pawan Kumar, who has been booked in Crime No,46 of 2009 by 'C' Section Police Station, Sukkur for offences under sections 295-A and 295-C, P.P.C. On the complaint of Asghar Ali Channa, the Medical Representative in Medicine Company.
2. ' On 30-5-2009, complainant Asghar Channa lodged in the F.I.R. At Police Station 'C' Sukkur, which reads as under:-- "Complaint is that, I am residing at the above-mentioned address and I am medical representative in a medicine company. On 19-5-2009, at about 1330 hours, I and my Manager Mansoor-ul-Hassan Usmani went together to Civil Hospital Sukkur with wall-mount prepared on behalf of the company with the picture of Dr. Pribhu Mal and his messages beneath and said picture to show the same to Dr. Pirbhu Mal. I went inside the room of physician leaving Manager Mansoor-ul-Hassan outside. Dr. Pirbhu Mal along with Dr. Pawan Kumar and their one guest were sitting there. At the time of watching wall amount Dr. Pawan Kumar said that you have made Dr. Pirbhu Mal as messenger and as to why words (Peace be upon him) have not got written. I asked him "what do you mean by it" on which doctor told that whosoever bring 'messages is called messenger. On which out of anger I came out and narrated the above facts to my Manager Mansoor-ur-Hassan and we came back.
3. Thereafter I informed to other medical representatives and doctors, I due to professional engagements had gone out of city and last night have come back and Informed my friends (1)
4. Waseem Abdul Qadir son of Fayyaz Mehmood Shaikh Siddiqui and Ainul Haq son of Abdul Haq Rajput and have come to report. I complained that Dr. Pawan Kumar (FCPS) Assistant Professor, after watching the wall mount have said that before the name of Dr. Pirbhu Mal (Peace be upon him) be written thus had used derogatory words and have injured the sentiments of the Muslims pray action".
5. ' The police on the basis of F.I.R., took up the investigation, on 3-6-2009 arrested the applicant.
6. During pendency of investigation on 13-6-2009, the applicant filed the bail application and the same was transferred by the learned Sessions Judge, Sukkur to the Court of learned IInd Additional Sessions Judge, Sukkur, who upon hearing the learned counsel for applicant, the learned counsel for the complainant and learned counsel for State, vide order, dated 16-6-2009, turned down the prayer of the applicant for grant of bail. Thereafter, the applicant filed the same before this Court for the same relief on 7-7-2009.
7. ' Mr. Abdul Mujeeb Pirzada, the learned counsel for applicant contended that applicant is innocent and he has falsely been implicated in the above case; that the applicant has neither committed the above offence nor can he dare to commit any other offence; that the applicant being a renowned doctor and commands great respect in his field, has been trapped in the above false case due to professional jealousy by using the complainant as a tool; that the applicant is born and brought up in the Muslim Society and by virtue of his teaching profession, there are thousands of his Muslim students and hundreds of Muslim friends and colleagues, he therefore, even cannot imagine to use derogatory words and/or remarks against the Last Prophet of Allah (Peace be upon him) and to hurt/injure religious feelings of any Muslim or anyone else belonging to any other religion; that bare perusal of the F.I.R. Shows presence of Dr. Pirbhu Mal to be the only eye-witness of the incident, but the said witness has not supported the version of the complainant even in his 161, Cr.P.C. Statement; that the implication of the applicant in the above case is with mala fide intention, which even otherwise is totally false, based on fake, fictitious and misleading story and will not appeal to any sane and prudent person; that the incident allegedly occurred on 19-5-2009, but the F.I.R. Of the said incident was registered by the complainant on 30-5-2009, after inordinate delay of about 11 days, without assigning any plausible justification thereof even the F.I.R. Itself; that the cognizance of the offence under section 295-A, P.P.C. Cannot be taken by the Court except upon a complaint by the authorized office of Federal or Provincial Government, as provided by section 196, Cr.P.C.; that the learned Additional Sessions Judge has gravely erred in holding that the case is covered by section 295-C, for which there is no restriction of taking cognizance while totally ignoring section 295-A, P.P.C. After being agreed with the contention raised on behalf of the applicant's counsel that by virtue of section 196, Cr.P.C. The cognizance of offence punishable under section 295-A, P.P.C. Cannot be taken by the Court except upon a complaint by the authorized officer of Federal or Provincial Government and there is no such complaint in respect of an offence punishable under section 295-A, P.P.C. By the authorized officer; that except eye- witness, Dr. Pirbhu Mal, all the other witnesses are not eye witnesses to the incident and their statements are only hearsay statements; that the learned Trial Court has failed to consider serious conflict in the statements of the complainant himself with regard to inordinate delay in lodging the F.I.R. Itself the complainant stated that after the alleged incident he went out of city in connection with his company's assignments, hence he could not register the F.I.R. Earlier while before the learned Magistrate the complainant took a different stand by stating that prior to lodging of F.I.R.
8. He wanted to consult with the 'Muffles' and after obtaining their 'Fatwa' he lodged the F.I.R. It is, therefore, abundantly clear that the above F.I.R. Has been lodged after due deliberation and consultation to entrap the applicant in the above cooked up and false case. The learned counsel in support of his contentions relied upon the case of Tariq Bashir and 5 others v. The State reported in PLD 1995 Supreme Court 34, Ayub Masih v. The State reported in PLD 2002 SC 1048, Mst. Sardaran Bibi v. The State, reported in PCr.LJ 342, and Muhammad Ehsanullah v. The State 2006 M LD 1504, and prayed for grant of bail.
9. ' Mr. Abdul Rehman Kolachi, the learned Assistant Prosecutor General along with Jameel Ahmed Abbasi, the Investigating Officer, submits that the complainant has lodged the F.I.R. With unexplained delay of eleven days, that sole witness Dr. Pirbhu Mal, who was present at the time of alleged occurrence, not supported the version of the complainant, another witness, peon Dost Mohammad also not supported the case of complainant. He submits that after conducting the enquiry and recording the statements of independent witnesses and recording the statement of accused, he came to the conclusion that no tangible evidence has been brought on record by the complainant to corroborate his version and according to him, no such incident had taken place. He submits that the complainant, falsely implicated the applicant in the case in hand. After completing the investigation, and obtaining necessary approval from the ASP, Sukkur, he submitted the report before the learned Civil Judge and Judicial Magistrate, Sukkur for disposal of the case under "C" class. The learned Civil Judge and Judicial Magistrate after hearing him and the learned counsel for the complainant, did not concur with his opinion and directed him to submit the final challan.
10. ' I have heard the learned counsel for the applicant, the learned A.P.G., and also the I.O. Jameel Ahmed Abbassi of Police Station 'C' Section Sukkur. It is an admitted fact that the applicant was posted as Assistant Professor, Ghulam Mohammad Mahar, Medical College, Sukkur. It is also an admitted fact that the complainant is doing the job of Medical Representative. It is an also admitted fact that the complainant has failed to advance plausible explanation in lodging of the F.I.R. With delay of eleven days. It is well settled that when the complainant failed to furnish the explanation, the deliberation, consultation cannot be ruled out. From the contents of the F.I.R., it appears that when the incident occurred, only Dr. Pirbhu Mal, the witness was present. In this case only the above said witness was present, when the above said incident was occurred and so also in presence of Dost Mohammad. Both of these witnesses in their statements before the police under section 161, Cr.P.C., have stated that no such incident occurred, neither the applicant has used any defiling words/derogatory remarks etc. In respect of the Holy Prophet (P.B.U.H.). In Criminal case, the intention mens rea is the prime condition of the offence and the said intention is to be seen at the time of recording the evidence. As stated above, the applicant in his statement has denied to have used the words attributed against him by the complainant, which also requires the evidence. Finding the case, to be false, the Investigating Officer has submitted the report before the Civil Judge and Judicial Magistrate, Sukkur for disposal of the case Under "C" class. From the perusal of F.I.R. And other material, the case of the applicant leaving room for further probe and requires further inquiry as contemplated under sub-clause (2) of section 497, Cr.P.C. The Investigating Officer, who was summoned, and has stated that no such incident was occurred, however, the applicant has been falsely implicated by the complainant having a business/professional rivalry. From the material, it appears that there is word against word, one advanced by the complainant in F.I.R., other by the accused in his statement recorded by the police during the course of investigation, therefore, the matter requires further evidence. The learned Civil Judge and Judicial Magistrate, Sukkur, while dismissing the application submitted by the I.O. For disposal of the case under "C" Class, on 23-6-2009, has observed:-- "It is a fact that eye witness Dr. Pirbhu Mal is a Hindu and colleague of accused, therefore, the possibility that he is an interested witness cannot be ruled out. All the other witnesses are not eye witnesses to the incident and their statements are based on hearsay statements. Contents of F.I.R.
11. Show that accused said to the complainant that complainant had made the Dr. Pirbhu Mal a messenger and whey the complainant had not written above the name of Dr. Pirbhu Mal the words Peace Be Upon Him. It is significant to mention here that the Holy Prophet Hazart Muhammad (P.B.U.H.) is the last messenger of Allah and the words "PEACE BE UPON HIM" are solely and exclusively used for our HOLY PROPHET HAZRAT MUHAMMAD (P.B.U.H.). It is also a fact that accused is highly (FCPS) Doctor and he was born and brought upon in the Muslim Society, thus it can be presumed that he knew the specific use of words (P.B.U.H.). At this stage the mens rea of the accused cannot be judged with the help of available record. Keeping in view, the above mentioned facts and circumstances, I am of the humble opinion that in order to reach a just conclusion of the case, evidence is required".
12. ' Under the above mentioned circumstances, the possibility of false implication cannot be ruled out, therefore, the learned Civil Judge and Judicial Magistrate rightly observed that the matter requires evidence.
13. ' The contention of the learned counsel for the applicant is that the offence would not fall under section 295-C, P.P.C., but to fall under section 295-A, P.P.C. The section 196, Cr.P.C., which provides the powers to the Court to take the cognizance, is reproduced as under:-- "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".
14. From bare reading of the above section, it is crystal clear that complaint cannot be lodged without order of the authority as mentioned above. Even otherwise, it is well-settled that the punishment of the lesser offence is to be considered while deciding the fate of bail. From the perusal of record, it appeals that there are three versions, one is advanced by the complainant, second by the Investigating Officer, and third one by the accused in his statement. It is yet to be seen after recording the evidence, which version is correct. It is yet to be seen whether the complainant has lodged the F.I.R. With deliberations and consultations in order to falsely implicate the applicant in the case in hand. From perusal of the statement recorded by the police, the accused/applicant has denied the allegations made by the prosecution and has stated that he has not uttered any defiling word against the Holy Prophet (P.B.U.H). His further statement is that he is practicing Doctor and is discharging his duty as Assistant Professor in the Medical College, therefore, it cannot be expected from him to cause injury to the faith/belief of any person regarding his sect/religion. He stated that the present case has been lodged by the complainant at the behest of his professional rivals in order to humiliate and to cause injury to his reputation in the eye of public at large.
15. ' In the case of Ayoob Masih, supra, the Honorable Apex Court, while deciding the point of delay in lodging the F.I.R. Has held as under:- "The unexplained delay in lodging the F.I.R. Coupled with the presence of the elders of the area at the time of recording of F.I.R. Lead to the inescapable conclusion that the F.I.R. Was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. Is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence.
16. It is true that unexplained delay in lodging the F.I.R. Is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. Has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only".
17. ' Further:-- "---Section 295-C---Criminal Procedure Code (V of 1898), S.154---Allegation of use of derogatory remarks etc. In respect of the Holy Prophet (P.B.U.H)---Reappraisal of evidence---Unexplained inordinate delay in lodging the F.I.R. Coupled with the presence of the elders of the area at the time of recording of F.I.R. Led the inescapable conclusion that the F.I.R. Was recorded after consultation and deliberation and fabrication of story and false implication could not be excluded altogether--- Unexplained inordinate delay in lodging the F.I.R., cast a cloud of doubt on the entire prosecution case and was to be taken into consideration while evaluating the prosecution evidence---Delay in lodging the F.I.R., in the present case assumed great significance inasmuch as the prosecution story was doubtful from the outset and the prosecution evidence was remarkable in weakness only".
18. ' In the case of Mst. Sardaran Bibi, supra, it has been held as under:-- "(5) Section 295-A, P.P.C. Is attracted against a person, who deliberately and maliciously insults or attempts to insult the religion or religious belief of a person or class of persons. All such offences are against the State. All offences against the State are tried under section 196, Cr.P.C. Thus, the offence under section 295-A, being an offence against the State is to be tried under section 196, Cr.P.C., joint reading of offence under section 196, Cr.P.C. And section 295-A, P.P.C., demonstrate that offence under 295-A, P.P.C. Is not an offence against an individual, but against the State, therefore, the Court can take cognizance in the offence under section 295-A, P.P.C., only, if the complaint is made or the case is registered by an order or under an authority from the Central or Provincial Government. The natural corollary is that in view of the provision of section 196, Cr.P.C., an offence under the State can be taken cognizance by a Court, if the law is set in motion as required by law.
19. No individual can lodge a complaint under section 295-A, P. P .0 . Directly.
(6) In the instant case, the complainant of the F.I.R. Is neither the Central Government nor Provincial Government and he was not authorized to act on their behalf to lodge the F.I.R. Since the Court cannot take cognizance of a case, when the complaint is not lodged by the Central or Provincial Government, thus, the argument that an individual can lodge the F.I.R. Is without substance, as the whole exercise of lodging of F.I.R. On the complaint of a private person is no legal consequences".
20. ' In the case of Muhammad Ehsanullah, supra, it has been held as under:--
(7) In the peculiar facts and circumstances of this case, as the petitioner has flatly refused the allegations levelled in the F.I.R. And loudly claims to be true Muslim having full faith on the last- hood of the Holy Prophet Muhammad (Peace be upon him) which factor is also duly mentioned in ground F of the instant bail petition, as the complainant has failed to produce tangible evidence before the Investigating Officer to make out a case against the petitioner, as the SP has found the petitioner innocent during the course of investigation, so, the ad interim pre-arrest bail already allowed to the petitioner is hereby confirmed".
21. In the case of Tarique Bashir and 5 others, supra, the Hon'ble Apex Court has laid down in the following rule, while granting the bail in non-bailable offences falling in the second category (Punishable with imprisonment for less than ten years), the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:--
(a) Where there is likelihood of ascendance of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) Where there is danger of the offence being repeated if the accused is released on bail; and
(d) Where the accused is a previous convict.
22. ' The applicant/accused is serving as Assistant Professor in Ghulam Muhammad Mahar Medical College, Sukkur, therefore there is no likelihood of his ascendance, tampering with the evidence and danger of the offence being repeated if he is released on bail. Applicant is not previous convict as informed by the learned counsel for the applicant at bar in the Court.
23. In view of the above, I am of the considered view that the case against the applicant has no legs to stand for the reasons, firstly the I.O. After conducting the inquiry, has found the applicant innocent and that the complainant has failed to bring on record sufficient tangible evidence to connect the applicant in the commission of offence, the I.O. Has further opined that the complainant has not advanced the plausible explanation of the delay in lodging of the F.I.R., and it is yet to be seen C whether the applicant has any intention to commit the offence, all these points requires evidence, and it is also yet to be seen that in what section the case of the applicant would fall, therefore, the case of applicant covered sub-clause (2) of section 497, Cr.P.C. Resultantly, I allow this application and order that the applicant be released on bail on his furnishing one surety in the sum of Rs,500,000 (Five lacs) and P.R. Bond of the like amount to the satisfaction of the learned trial Court.