' QAISER RASHID KHAN, J.---The accused/petitioner, namely, Riyasat, charged in case F.I.R. No,420 dated 16-6-2011 under sections 295-A/298-A registered at Police Station Cantt. Tehsil and District Abbottabad has filed this application for his release on bail.
2. According to the report lodged by the complainant Haji Ayaz Khan on 16-6-2011 at 2115 hours, he from his own sources came to know that at Tarakna Road, at the bottom of a door of a certain house, there were written some derogatory remarks against the companions of the Holy Prophet (Peace be upon him) and when he went there along with two other persons, he found the same and was told by the people in the neighborhood that the house belonged to the petitioner and that the complainant was sure that the same was done by the petitioner himself.
3. Learned counsel for the petitioner vehemently argued that the petitioner has been falsely roped in the case; that from the facts and circumstances of the case, section 295-A, P.P.C. Is not attracted while section 298-A, P.P.C. Is bailable; that there is no independent direct evidence in the case; that investigation in the case is complete and the petitioner is no more required for the purpose.
4. Conversely, the learned Additional Advocate-General appearing for the State assisted by the learned counsel for the complainant resisted the grant of bail to the petitioner on the grounds that the petitioner is directly charged by the complainant in the promptly lodged report; that the statements of P.Ws. Nazakat Qureshi and Hashim Khan fully support the version of the complainant and that the alleged derogatory remarks recovered from a basket in the house of the petitioner reasonably connect him with the commission of the offence.
5. I have carefully gone through the record of the case and anxiously considered the submissions of the learned counsel for the parties.
6. Without touching the merits of the case, it is yet to be ascertained as to who has dared to commit such an abominable act and that too right at the doorstep of the house of the petitioner facing a street/thoroughfare, and that who informed Haji Ayaz Khan complainant about the act when he too had to come all the way from his .Place of residence to the place where the accused/petitioner resides and why not a local from the same area when all he needed was to inform the police about the matter without even becoming a complainant and the police would have acted itself Thus it makes it a case of further probe.
7. The petitioner has been charged under section 295-A, P.P.C. Which reads as under:-- "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 representations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years or with fine, or with both".
8. Similarly, section 196, Cr.P.C. Reads as under:-- "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 249A 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".
9. Now the joint reading of both these sections amply show that offence under section 295-A, P.P.C.
Is not merely an offence against a particular individual but for all intents and purposes, it is against the State and, therefore, the procedure requires that a court can only take cognizance of such offence if the complaint is made by order of the authority from the central government or the provincial government. If the same is not done within the mandate of section 196, Cr.P.C., the same is not a curable irregularity. The provisions of section 196, Cr.P.C. Are mandatory in nature in essence and not directory. It has been the consistent view of the superior courts that where the mandatory procedure for the exercise of jurisdiction is not fulfilled, then the entire proceedings that ensue pursuant thereto would become coram non judice, illegal, and without jurisdiction.
10. As against the other complaints lodged in the ordinary course, no complaint under section 295- A, P.P.C. Can be lodged by a person directly. Complaint ought to be made either by the central government or the provincial government, or for that matter any person authorized on their behalf to lodge an F.I.R. Under the section ibid. In the instant case, the said qualifications of the complainant who lodged the complaint directly are missing. As far as section 298-A is concerned, the same is bailable.
11. Thus the question of guilt or otherwise of the accused/petitioner would require further inquiry and he is held entitled to the concession of bail.
12. For the foregoing reasons, the application is, therefore, accepted and the accused/petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.
13. Above are the reasons for my short order of even date.