1. ' Prosecution case is that there was an old graveyard in Government land at the distance of one furlong from the house 'of complainant where dead bodies of his relatives were buried. One mosque is said to have been in the graveyard. It is said that on 27-4-2002 when Jan Muhammad (complainant) went to offer Fateha at the graves of his relatives, he found Baradiyo Soomro and his sons Muhammad Hanif and Zainul Abidin levelling the land of graveyard with tractor. On protest by Jan Muhammad, Baradiyo And his sons claimed that it was the land granted to them during 1999 and if he comes again there they shall fire and kill him.
2. ' The matter was taken up privately before the Nek Mards and Government Authorities and District Nazim arranged one private Faisala but Baradiyo and his sons did not accept it. After that the complainant was compelled to lodge the F.I.R. Having no other option.
3. ' Hanif and Zainul Abidin were arrested on 29-6-2002. Their bail plea was turned down by the learned trial Court i,e, 1st Additional Sessions Judge, Thatta, after the challan was submitted for offences including section 295-B, P.P.C. The present bail application has been filed after dismissal of that application.
4. ' Applicants' learned counsel has contended that in fact the offences, except sections 295-B and 506/2, are bailable. He further contended that section 295-B, P.P.C. Has been applied wrongly without any justification and without any evidence. According to the learned counsel neither the F.I.R. Nor the Faisla having taken place at the instance of District Nazim indicate the offence under section 295-B. It is the subsequent development through 161, Cr.P.C. Statements written by the police. The learned counsel frankly stated that the Faisla indicates that the applicants had encroached upon some piece of land by the side of the graveyard which offence is bailable.
5. ' Learned State Counsel has opposed the bail plea suggesting that the applicant can repeat the similar application after material witnesses are examined by the trial Court.
6. ' The contents of the F.I.R. And the copy of Faisla signed by the District Nazim do not indicate the offence under section 295-B. Also 161, Cr.P.C. Statements of the witnesses show that none of the witnesses has witnessed the act of defiling etc. Of any copy of Holy Qur'an. They however, have stated that the copies of Holy Qur'an were available in the mosque. Thus, the commission of offence under section 295-B is yet to be proved through evidence during the trial.
7. ' Offence under section 506(2) is punishable with imprisonment for seven years and as such the embargo under section 497. Cr.P.C. Is not attracted. Remaining are bailable.
8. ' In view of the above discussion, the bail is granted to the applicant/accused. They shall be released on furnishing sureties in the sum of Rs,50,000 each with P.R. Bond in the like amount to the satisfaction of the trial Court. However, the prosecution shall be at liberty to move for cancellation of their bail before the trial Court, in case of any activity amounting repetition of the similar offence by the applicants/accused after their release on bail.