PLJ 2009 Cr.C. (
[
Present: Malik Saeed Ejaz, J.
MUHAMMAD YASIN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 395-B of 2008, decided on 14.4.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497 & 498 r/w Ss. 91 & 204--Complaint
case--Issuance of process--Application for grant of bail by the
petitioner--Rejection of--Request for grant of post arrest bail--Acceptance
of--Merits of the case are not required to be touched at the time of deciding
bail petition in a private complaint, therefore impugned order passed by ASI is
not sustainable--Petitioner admitted to bail merely on technical grounds by
following the provisions of Section 204 Cr.P.C. read with Section 91
Cr.P.C.--Bail granted. [P. 449] A
Mr. M. A. Hayat Haraj, Advocate for Petitioner.
Mr. Nadir Manzoor Duggal, DPG, for State.
Mr. Abdul Aziz Khan Punnian, Advocate for Complainant.
Date of hearing: 14.4.2008.
Order
Muhammad Yasin-petitioner has sought post-arrest bail in
private complaint (Muhammad Fazil Vs. Muhammad Yasin and others) filed by
Muhammad Fazil/Respondent No. 2, for offences under Sections 302/148/149, PPC,
pending before the learned Additional Sessions Judge, Khanewal.
2. Brief facts of
the case per complaint are that the petitioner along with his co-accused while
equipped with firearm attacked upon the complainant party. The petitioner fired
a straight shot with Repeator at Ghulam Jaffar, which hit him on his chest. As
a result whereof Ghulam Jaffar fell down on the ground and succumbed to the
injuries at the spot. While the witnesses were attracted to the spot the
accused fled away from the scene of occurrence. The motive behind the
occurrence is stated to be a dispute of cotton crop between Khizar Hayat
Dadowana and the deceased.
3. Prior to filing
of the private complaint, the complainant lodged FIR No. 322 of 2004 on
4. The petitioner
moved an application for grant of his pre-arrest bail in the said complaint and
the same was declined vide order dated
5. Learned counsel
for the petitioner submits that the petitioner was never arrested in police
case bearing FIR No. 322 of 2004 aforesaid, and the same has been filed as
"Untraced". As a result of which the petitioner was neither required
by the police nor he was ever arrested therein.
6. Learned counsel
further submits that the petitioner was summoned in the private complaint by
the learned trial Court and process under Section 204 Cr.P.C. was issued to
ensure his attendance to face trail, as such the learned trial Court would have
direct him to submit surety bond under Section 91 Cr.P.C. Lastly submits that
as the bail was illegally declined by the learned trial Court in violation of
prescribed provisions of law i.e. Section 204 Cr.P.C. and Section 91 Cr.P.C. In
support of his contentions learned counsel has relied upon the cases of Syed
Muhammad Firdos and others vs. The State (2005 SCMR 784), Maqbool Ahmad and
others vs. The State (1997 P.Crl.L.J. 1074) and Mazhar Hussain Shah vs. The
State (1986 P.Cr.L.J. 2357).
7. On the other
hand, learned DPG assisted by the learned counsel for the complainant submits
that FIR No. 322 of 2004 was got registered against the petitioner and others
by the complainant immediately after the occurrence; that specific role of
firing with repeator has been assigned to the petitioner as his fire shot had
hit at the chest of the deceased Ghulam Jaffar, as such the fatal shot was
directly attributed to the petitioner; that the petitioner cannot claim his
bail as a matter of right under Section 91 Cr.P.C. because this section is
general in nature and any accused involved in the offence of such heinous
nature cannot be enlarged on bail and his case of bail would be decided by
following the provisions of Section 497 Cr.P.C. by touching the facts and
merits of the case and not on technical ground.
8. After hearing
the learned counsel for the parties and going through the record, the
aforementioned facts were found correct in a sense that the petitioner has been
declared innocent during four successive investigations and no Challan against
him is in existence, as earlier Challan under Section 512 Cr.P.C. was returned
by the learned Sessions Judge vide order dated 19-01-2006. Record reveals that
case FIR No. 322 of 2004 has been filed as "Untraced" by declaring
the petitioner and his co-accused innocent in the alleged occurrence; as such
he is not required to the police. The contentions raised by the learned counsel
for the petitioner that the petitioner was never required or arrested by the
police, are found correct.
9. As far as the
petitioner's claim for grant of bail under Section 91 Cr.P.C. read with Section
204 Cr.P.C. is concerned, I would like to reproduce both the relevant
provisions of law hereunder for ready reference:--
Section 204 Cr.P.C.
Issue of process: (1) If in the opinion of a (Court)
taking cognizance of an offence there is sufficient ground for proceeding, and
the case appeals to be one in which according to the fourth column of the
Second Schedule, a summons should issue in the first instance, (it) shall issue
his summons for the attendance of the accused, if the case appears to be one in
which, according to that column, a warrant should issue in the first instance,
(it) may issue a warrant, or, if (it) think fit, a summons, for causing the
accused to be brought or to appear at a certain time before such (Court) or if
(it) has not jurisdiction (itself) some other (Court) having jurisdiction.
Section 91 Cr.P.C.
Power to take bond for appearance. When any person for
whose appearance or arrest the officer presiding in any Court is empowered to
issue a summons or warrant, is present in such Court, such officer may require
such person to execute a bond, with or without sureties, for his appearance in
such Court.
10. In the above
cited case by the learned counsel for the petitioner it is held by the Hon'ble
Supreme Court of Pakistan and this Court that "when trial Court in a
private complaint issued process under Section 204 Cr.P.C. and summoned the
accused for appearing before the Court, in response to summons issued the
accused appears before the Court, the trial Court in pursuance of a process
issued under Section 91 Cr.P.C. may direct him to execute bonds with or without
sureties for his appearance before the Court."
11. In the instant
case, the petitioner was declared innocent in the investigation and police case
against him has been filed as "Untraced". Resultantly, in private
complaint regarding the same occurrence, process under Section 204 Cr.P.C. was
issued by the learned trail Court and the petitioner was directed to appear to
face trial in the instant complaint. When the accused appeared in response to
issuance of such process, the learned trial Court instated of directing him to
execute bonds with or without surety by following the provisions of Section 91
Cr.P.C, rejected the request of bail of the petitioner and sent him behind the
bars.
12. The case law
cited by the learned counsel for the petitioner is very much applicable in the
instant case and I would like to reproduce the relevant extracts of the same.
In the case reported as 2005 SCMR 784 it is held that "Once the Court
decided to proceed against them (accused), then their bail should have not been
cancelled as they were liable to be dealt with under Section 91, Cr.P.C."
In the case cited as 1997 P.Crl.L.J. 1074 it is observed that "Admittedly
the petitioners are accused persons in a private complaint After the issuance
of a process against them under Section 204 Cr.P.C. when they had put in appearance
before the trial Court the learned Sessions Judge should have acted in
accordance with the provisions of Section 91 Cr.P.C." Similarly in the
case published as 1986 P.Crl.L.J. 2359 in its head-note it is held that
"In response to summons issued by trial Court in a private complaint
accused persons appearing before trial Court and moving for bail which was
refused--After appearance of accused in Court, trial Court, held, was required
to proceed under S. 91 Cr.P.C and to direct accused to execute bonds with or without
sureties for appearance in Court--As accused were not asked to execute bonds
they could not be said to have failed to do so--Observations of trial Court
that case was of pre-arrest bail was found to be misconceived and accused were
found to be entitled to bail in circumstances."
13. In these
circumstances, I am of the considered view that the learned trial Court has not
followed the prescribed procedure of law as laid down under Section 204 Cr.P.C.
read with Section 91 Cr.P.C. but on the other hand the learned trial Court had
decided the bail petition of the petitioner by touching the merits of the case,
while interpreting the provisions of Section 204 Cr.P.C. read with Section 91
Cr.P.C. in the light of above cited judgments, I am of the considered view that
the merits of the case are not required to be touched at the time of deciding
bail petition in a private complaint, therefore, the impugned order dated
16-04-2007 passed by the learned Additional Sessions Judge, Khanewal, is not
sustainable, hence, the same is set aside.
14. Keeping in
view the facts and circumstances of the case and relying upon the above
referred judgments have no option but to admit the petitioner to bail merely on
technical grounds by following the provisions of Section 204 Cr.P.C. read with
Section 91 Cr.P.C. to release him on bail by directing to submit bail bonds in
the sum of Rupees Five Lac (Rs. 5,00,000/-), with two sureties, each in the
like amount, to the satisfaction of the trial Court.
15. Before parting
with this order, it is made clear that this order has been passed by following
the provisions of Section 204 Cr.P.C read with Section 91 Cr.P.C. and the bail
to the petitioner has been granted merely on technical grounds without touching
the merits of the case, as such this order shall not be applicable in the
police case (FIR No. 322/2004) and if at any stage, bail is required to the
petitioner in the said police case, his case will be dealt with under the
prescribed procedure as laid down under Section 497 Cr.P.C.
16. This petition
in the above terms, stands disposed of.
(M.A.K.Z.) Petition disposed of