1. ' Applicant Syed Jaffar Raza Naqvi is detained in Crime No,139/92 under section 295-B, P.P.C.
2. Registered against him at Sher Shah Police Station, Karachi on 23-8-1992. The first bail application filed on behalf of the applicant was dismissed by the learned Sessions Judge (West) Karachi on 22-9-1992. He then filed Criminal Bail Application No,47 of 1993 before this Court which was dismissed on 21-2-1993 as not pressed but the trial Court was directed to examine the complainant and one witness within two months and it was left open to the applicant to repeat the bail application if so advised. After the examination of witnesses bail application was repeated on behalf of the applicant which is dismissed by IInd Additional Sessions Judge (West), Karachi. On 9- 2-1994, as the case was transferred to this Court. In the circumstances applicant has filed second bail application before this Court.
3. ' F.I.R. Was lodged by complainant Muhammad Hanif who stated that on 23-8-1992, he was present at the mutton shop of Muhammad Iqbal when applicant passed from there and was carrying some papers in his hand Muhammad Iqbal's son Shahid, considering that they were waste paper 'demanded the same from applicant who replied that they were of no use for him. Thereafter, applicant is said to have thrown those papers in a dust bin (Kachra Kundi) and set them on fire. It is further stated in the F.I.R. That Shahid's brother went towards the dust-bin and saw that the papers comprised verses of Holy Qur'an and he brought those papers at the shop of Iqbal, where, in the meanwhile, P.Ws. Nisar, Malik Mansoor, Akhtar Gul and many others had gathered. The F.I.R. Further reveals that the witnesses made inquiry from the applicant about the incident who replied that he had burnt those papers as it was justifiable to do so. Information regarding the incident was given at the police station and after a while, a police mobile arrived collected the burnt pieces of the verses of Holy Qur'an and arrested the applicant. After usual investigation the case has been sent up for the trial of the accused.
4. ' I have heard the learned Advocate for the applicant, the AA.-G. And the Advocate for the complainant. It is contended by applicant's learned Advocate that out of three witnesses Nisar Ahmad, Malik Mansoor and Akhtar Gill who are named in the F.I.R. To be the eye-witnesses of the occurrence, P.W. Malik Mansoor is given up while P.Ws. Nisar Ahmad and Akhtar Gul who have been examined have stated on oath that they had not seen the applicant burning the verses of Holy Qur'an. It is also contended that the P.W. Rana Ishfaq who is a Chairman of District Zakat and Ushr Committee was also examined and he categorically stated that the place of incident was not visible from the shop of mutton seller Muhammad Iqbal and that on enquiry from applicant he found that applicant had no connection with the alleged incident. The learned Advocate also pointed out to the evidence of P.W. Rana Ishfaq Rasool Khan who stated that a Committee of the High Officials of Sipah-e-Sahaba was constituted which included the Ulema of the area to ascertain the allegations against the applicant and the Committee had come to the conclusion that applicant was innocent and had not committed any offence as alleged. Learned Advocate then referred to the evidence of P.W. M.S. Tariq S.H.O. Police Station Sher Shah who admitted that the place of incident was not visible from the shop of mutton seller Iqbal. According to the learned Advocate that being the evidence, case of applicant would fall under subsection (2) of section 497, Cr.P.C. Requiring further inquiry and applicant would be entitled to bail. In support of these contentions learned Advocate has referred to the cases of (1) Muhammad Saleem v. The State PLD 1989 Lah. 233, (2) Sultan Muhammad and another v. The State 1981 PCr.LJ 685 (SC AJ&K), (3) Shah Muhammad Khan and another v. The State 1991 PCr.LJ 65, (4) Muhammad Abbas and another v.
5. The State PLD 1988 SC (AJ&K) 14, (5) Muhammad Bashir and another v. The State PLD 1983 SC (AJ&K) 8 and (6) Yousuf and another v. The State 1978 PCr.LJ 375.
6. ' Mr. S. Amjad Ali Shah, A.A.-G. Has frankly conceded to the grant of bail and has argued that for two reasons he would not oppose this application. Firstly, that from the shop of mutton seller Iqbal the place of incident where the dust-bin was lying was not visible. Secondly, that two important eye- witnesses Nisar Ahmad and Akhtar Gul have categorically stated that applicant has not committed the alleged incident. The learned AA.-G. Went a step further and stated that he has verified even the police statements of the witnesses and none of them have, in fact, implicated the applicant.
7. ' Mr. Abdul Aziz Khan Khilji, Advocate for the complainant, was also heard and he has opposed this application on the grounds that the witnesses Muhammad Hanif, Shahid and Waheed have supported the prosecution case. He, however, could not point out as to in what manner these witnesses had supported the prosecution case against the applicant. Mr. Khilji, however, argued that the offence with which the applicant is charged is a heinous offence and is punishable to imprisonment for life and merely because some witnesses have not supported the prosecution case that by itself would not make applicants' case as further enquiry nor the applicant would be entitled to grant of bail. Learned Advocate in support of such contentions referred to the cases of
(1) Asghar Ali v. The State 1985 PCr.LJ 131, (2) Ibrahim and another v. The State 1981 SCMR 434 and (3)
8. Muhammad Jamil v. The State 1993 PCr.LJ 2144.
9. I have considered the contentions raised by learned counsel and have also gone through the entire evidence so far recorded. Two material prosecution witnesses Nisar Ahmad and Akhtar Gul who were allegedly present when the incident was noticed, have not supported the prosecution case and on the contrary they have stated that the applicant was innocent and had not committed this offence. I have also perused the evidence of the Investigating Office who stated that a Committee of Ulema of Sipah-e-Sahaba had enquired into the matter but found applicant not involved in this case. The place where the dust-bin was lying was admittedly not visible from the shop of mutton-seller Muhammad Iqbal and therefore, it cannot be said that verses of the Holy book were either thrown by applicant in the dust-bin or were set on fire by him. The benefit on any point even at bail stage can be given to an accused. From the above discussion I am of the clear view that the case of applicant falls within preview of subsection (2) of section 497, Cr.P.C. And requires further enquiry and I am, therefore, inclined to grant him bail. Applicant shall be so released if he furnished one surety in the sum of Rs,50,000 (Rupees fifty thousand) and P.R. Bond in the like amount to the satisfaction of the learned trial Court. Any observation in this order shall not influence the trial Court while deciding the case.