These are two applications for cancellation of bail under subsection (5) of section 497, Cr. P. C.
Registered as Cr. Misc. No. 2222/8/78 and Cr. Misc. No. 3766/8/78. There are two respondents in the first mentioned application namely, Shaukat and Muhammad Sharif while Muhammad Hanif is the sole respondent in the next application.
2. The respondents have been along with Haji Rehmat Ullah, father of Shaukat and Muhammad Hanif accused of commission of offences of murder and attempted murder under section 302/307/34, P. P. C. Said to have been committed by the accused in furtherance of a common intention. I find it unnecessary to encumber this order even with a condensed narrative of the allegations which formed the basis of charge against the accused for the reason that the respondents were allowed bail by learned Sessions Judge, Kasur on a legal ground of non- submission of challan by the prosecution. Suffice it to say that the three respondents have been attributed active role in the commission of the offence in the first information report lodged in less than an hour of the incident. Muhammad Hanif respondent in Criminal Miscellaneous No. 3766/13/78) had opened the attack and fired at Mst. Sharifan a sister of Rashid deceased hitting her in the face. The remaining two respondents, each had fired at the deceased with guns in their hands killing him instantaneously.
All the four accused in the case were arrested next day of the incident, I.e. 3rd of November, 1977.
Muhammad Hanif respondent and his father Haji Rehmat Ullah applied for release on bail before learned Sessions Judge, Kasur on 3rd of December 1977. The application was rejected on 22nd of February 1978. Further application (Criminal Miscellaneous No. 887/78) was filed in the High Court on 27th of February 1978. Haji Rehmat Ullah was extended the benefit of proviso to subsection (1) of section 497, Cr. P. C. And admitted to bail vide order dated 20th of May, 1978. The application so far it relates to the release of Muhammad Hanif respondent on bail was rejected on 24th of June, 1978.
Shaukat and Muhammad Sharif had also moved learned Sessions Judge for bail on 10th of April, 1978 and the application was turned down on 16th of April, 1978. Shaukat alone applied before this Court by means of application scribed on 24th of April, 1978 but actually filed a week later i.e. On 30th of April, 1978 (Criminal Miscellaneous No. 1637/8/78). The application came up for hearing in motion on 20th of May, 1978 and was dismissed in limine same day. Shaukat and Muhammad Sharif filed second application before learned Sessions Judge on 17-5-1978 which was accepted on 1-6-1978 on the ground of non-submission of challan. Muhammad Hanif respondent filed second application for enlargement on bail before learned Sessions Judge on 17th of August, 1978. The reason why the said respondent had delayed his application although the remaining two accused who were allegedly responsible for causing death of the deceased were admitted to bail is that Muhammad Hanif had taken the matter to Supreme Court. The application for grant of special leave to appeal (S. P. L. A. No. 24/78) was rejected in liming on 3rd of August, 1978. It may also be stated that this fact was not mentioned in the application filed on behalf of the respondent before learned Sessions Judge. This second application was accepted by learned Sessions Judge on 27th of August, 1978 for the same reason of non---submission of challan.
3. The instant applications were initially pressed on the ground that learned Sessions Judge was misinformed that challan had not been filed and even otherwise non-submission of challan was not a valid ground for release of the respondents on bail. Subsequently, on 1st of August, 1978, an application was filed in Criminal Miscellaneous No.2222/13/78 that the respondents (Shaukat and Muhammad Sharif) had tried to suborn the witnesses. Supporting affidavits of four witnesses were also filed.
4. It may be stated at the outset that the contention that Challan had been filed was incorrect and the allegation that the respondents (Shaukat and Sharif) had abused concession of enlargement on bail could not be sustained. The allegation is afterthought. The affidavits filed by the witnesses in support of the said allegation are vague and did not inspire confidence.
5. Inquiry has revealed that the prosecuting D. S. P had endorsed challan on 24th of August, 1978 and file was sent to the Court of Ilaqa Magistrate (Rao Tehsin Ahmad) on 26th of August, 1978 by means of Road Certificate No. 501/21 and was handed over to Mr. Mukhtar Hussain, Ahmad, same day. According to latter's version, the file was returned to Naib Court immediately afterwards with an objection. The Naib Court who was called for a clarification has said that the file was taken back from the Ahmad in connection with hearing of bail application of Muhammad Hanif respondent before learned Sessions Judge, Kasur. Apparently, the version of Naib Court has a bring of truth around it. Allah Yar Assistant Sub---Inspector had appeared before learned Sessions Judge with the file next day, Le. 27th of August, 1978 when the application was disposed of. The file was again handed over to the Ahmad on 3rd of September, 1978 which he had kept with him and did not place before learned Magistrate. The explanation offered by the Ahmad is easily susceptible of grave doubts that he had deliberately withheld the file so that the respondents may gain an advantage.
It will be shown that this leaves us with the short question if non---submission of challan was a valid ground in law for release of the respondents on bail although it had already been decided conclusively that there were reasonable grounds for believing that they were guilty of charge punishable with death/life imprisonment and the case was covered squarely by the prohibition enacted in subsection (1) of section 497, Cr. P. C. I will advert to this point a little later.
6. Learned counsel for the respondents have on the authority of judgment of Supreme Court in Nazir v. Amir Din (1976 P Cr. L J 324) which was also applied to the precedent case of Mirza Khan v.
Lai Khan and another (1971 SCMR 637) contended that Court of Session was the proper forum for application for cancellation of bail in the first instance, the application should, therefore, be rejected summarily directing the petitioner to apply before learned Sessions Judge for recall of his orders admitting the respondents to bail. I am not impressed favourably by this argument. As I see, principle of general application was not enunciated in Nazir's case. In that case, bail of the accused was cancelled by a learned Single Judge of this Court on fresh allegations that the accused had threatened the witnesses which were not raised before learned Sessions judge when the latter had rejected a similar application by the complainant. In the instant case, the respondents were allowed bail summarily by learned Sessions Judge on a legal ground. Precisely, this point was also raised in Sakhi Muhammad Bhutta v. Karam Elahi Zia (PLD 1977 Lah. 1441) and the contention was repelled with the observation that additional grounds were not being considered for disposal of the application for cancellation of bail. The contention was raised in another case also of Amir v.
Bakhshu (PLD 1975 Lab. 625) in which the accused were released on bail on a similar ground. The argument was turned down with the observation, that since the order of the Sessions Judge was passed on a legal ground, I think there was no bar against the complainant in coming to this Court straightaway on question of law and fact. Respect--fully, I whole beartedly share this view. High Court is competent to cancel bail granted by Sessions Judge under section 497(5), Cr. P. C. Or the impugned order could be undoubtedly revised under section 439, Cr. P. C. Reference in this behalf be made to the judgment in Ghulam Muhammad v. Khan Muhammad and others (1975 P Cr. L J 605) and the judgment of Supreme Court in Ejaz Ahmad v. The State (1974 SCMR 166). The question of cancellation of bail before arrest had arisen in the case before Supreme Court but the view expressed therein should apply equally to the order of Sessions Judge granting bail after arrest. The contention that the petitioner should have in the first instance applied before learned Sessions Judge is rejected.
7. Having cleared the deck as I may say so, we come in closer grips with the real point in issue. It was argued on the side of the respondents that they were rightly allowed bail on the ground of non-submission of Challan. The orders for postponement of proceedings under section 344, Cr. P.
C. Were passed mechanically and were also illegal on the further ground that learned Magistrate had not so far taken cognizance of the case. A number of authorities were cited in support of these contentions which are set out below chronologically : Gustasab v. Crown (PLD 1956 FC 117), Darshan Singh v. The State (PLD 1957 Kar. 210), State v. Sami Ullah (PLD 1959 Kar. 157), Hamid Hussain v. The State (PLD 1960 Lah. 498), Muhammad Zikria alias Popu v. The State (1969 SCMR 172), Shah v. The State (PLJ 1974 Cr. C (Lah.) 296), Amir v. Bakhshu Allah Ditta and others v. The State (1976 P Cr. L J 522), Ghazi and others v. The State (PLJ 1977 B J 19), Phhool Muhammad Khan v.
The State (1975 SCMR 137), Murntaz v. Sarfraz (1977 SC M. R 1) and finally Qurban Shah v. The State (1978 P Cr. L J 739).
8. The contention that orders remanding the accused to custody under section 344, Cr. P. C. Were liable to be struck down as illegal for the reason that learned Magistrate has not so far taken cognizance of the offence under section 190, Cr. P. C. Which was premised on the judgment in Sami Ullah's case in which the view taken in Darshan Singh's case was re-affirmed should be rejected forthwith with reference to the judgment in Muhammad Ishaque v. The State (1973 P Cr. L J 92). It was held in that case with reference to the judgment of Supreme Court in State v. Fateh Muhammad (Criminal Appeal No. 20 of 1971), that it was (with great respect) no more necessary to follow Karachi Full Bench Judgment and the detention of the accused under a warrant of remand to the judicial custody by a Magistrate without taking cognizance is not illegal either on interpretation of section 344, Cr. P. C. Or on account of any other provisions of law.
The remaining cases cited on behalf of the respondents in which the accused were released on bail on account of non-submission of challan or delay in the proceedings need not be discussed individually as all those cases should be taken to proceed on their peculiar facts. However, the judgments in Muhammad Zikria alias Papu v. The State and Amir v. Bakhshu which were relied upon with special emphasis by learned counsel for the respondents and were also conceded to by learned Additional Advocate-General, may be noticed in proper detail. In Muhammad Zikria's case, the challan was not filed for six months and also not filed when the matter had reached Supreme Court through petition for Special Leave to -Appeal. Leave was granted and the petitioner was admitted to bail pending disposal of the appeal. It is not known what was the final judgment in that case. In Amir's case, the accused in case of murder were allowed bail by learned Sessions Judge on the ground that a period of more than six months had elapsed but the Police bad not submitted challan in Court. That case had some special features which are not to be found in the instant case. In that case it was also observed that the fact that the Police had taken months to investigate the truth or otherwise of the F.I.R. Lodged by the informant would indicate that this is a case of further inquiry and would, therefore, fall within the purview of subsection (2) of section 497, Cr. P. C. 1n the instant case the investigation had concluded within six weeks. Pausing, it may be noticed here that the contention that delay in submission of challan was not a valid ground for release of the accused on bail in case of murder was rejected in Fazal Hussain and others v. The State (1974 P Cr. L J 161). Learned counsel for the respondents were of the view that the contention was raised casually and replied in the same strain. I am afraid this is not correct. The submission was categorical and was replied alike. However, this view was not approved in Amir's case. In view of the Judgment of Supreme Court in Riasat All v. Ghulam Muhammad and another (PLD 1968 SC 353), it will be pointless to expand the discussion any further. It was ruled in that case that leisurely steps taken in filing the challan, tardy and halting procurement of evidence or seeking of unnecessary adjournments except those necessitated by force of circumstances must be strongly deprecated. But, the delay in the prosecution of a case or the procrastination of the proceedings in a trial furnishing a ground for bail have to be weighed and adjudged in each case on its own material.
9. It will be shown that there is no inflexible rule of universal application regardless of the facts of each case. The responsibility for the delay would be equally relevant with the amount of delay, and its causes. Reference be made to the judgment of this Court in Dara and others v. The State (PLD 1971 Lah. 391). It was held in that case with reference to the decision of Supreme Court in P. S. L. A.
No. 140 of 1969 (observations of Supreme Court reproduced at page 392 of the report) that delay in prosecution of cases covered by the prohibition contained in section 497, Cr. P. C. Is per se no ground for bail even when the delay was not attributable to the conduct of the accused. The position in the instant case is quite different. Perusal of the file reveals that challan was drawn up by the Investigating Officer on 14th of January. 1978 but could not be filed in Court due to successive applications by the respondent. As said above, application for release on bail of Haji Rehmatullah, and Muhammad Hanif (Criminal Miscellaneous No. 887/B/78i was disposed of by this Court on 24th of June, 1978. However, the file had been lying in the registry, obviously for hearing and disposal of petition for quashment of proceedings in the cross case under section 307, P. P. C.
Lodged against the complainant. The file was taken back by the Police on 21st of August, 1978. The prosecution could not be penalized as responsibility for delay in filing the challan was primarily due to proceedings held on various applica--tions filed by the respondents.
10. It was next contended that it will not be fair to push the respondents back to custody as the allegation that they had mis-conducted themselves after their release on bail had been rejected.
Support for this contention was sought to be drawn from the judgments in Allah Jiwaya v.
Muhammad Aslam and another (1976 P Cr. L J 264) and Phhool Muhammad khan's case already referred to in the foregoing lines. On facts the case in band is distinguishable from both these cases. In the first mentioned case the accused who were arrested at the spot had provided the names of the respondents and those accused had also been released on bail. In the next case, the order admitting the accused to interim bail was held to have been passed on sound principles of law and the order eminently merited confirmation particularly for the reason that the investigation of the case was not complete and so far no additional and incriminative evidence had been brought against the petitioner in spite of the fact that Police investigation was not in any way hampered by the fact that the petitioners were on bail. Investigation in this case had already concluded, the respondents were found guilty, but challan could not be filed because of the fact that the respondents had been seeking judicial remedies to which they were no doubt entitled under the law.
The conduct of the respondents was also not entirely above board. Shaukat and Muhammad Sharif had filed second application before learned Sessions Judge on 17-5-1978 while the application by Shaukat was still pending in the High Court. The fact that the said application had been dismissed in limine was not disclosed to learned Sessions Judge. Muhammad Hanif should have also stated in his second application before learned Sessions Judge that his petition for special leave to appeal had been rejected by the Supreme Court no matter whether or not this fact was relevant to the question of grant of bail on the ground of non-submission of challan. I have also a genuine feeling which I have already indicated in the earlier part of this order that Ahmad in the Court of learned Magistrate had with held the file to help the respondents.
11. Report received from learned Sessions Judge confirms the version of learned counsel for the respondents that this case could come up for trial on its own turn within a few weeks if challan were filed immediately. It was, therefore, urged with reference to the judgment of Supreme Court in Shahid Arshad v. Muhammad Naqi Butt (1970 SCMR 366) that bail should not be cancelled even though order of learned Sessions Judge were found to be erroneous. In that case, their Lordships had declined t9 interfere with the order releasing the accused on bail although their Lordships did not feel happy about the order as the case was coming up for trial before Court of Session some time in the next month. In my humble opinion, this view should be construed confined to that case and was not intended to be applied as a general principle to every case.
12. In the result, I hold that in the circumstances of the case, learned Sessions Judge was not justified in accepting summarily application for release of the respondents on bail against whom there was ample material to demonstrate manifesly that charge against them was not groundless and the prosecution was not to blame for omission to file the challan. The applications are accepted and bail allowed to the respondents by learned Sessions Judge is cancelled. They shall surrender to their bail bonds or learned Sessions Judge shall cause them arrested through authorities concerned. File be immediately sent to Rao Tehsin Ahmed, learned Illaqa Magistrate for taking cognizance of the offence under section 190, Cr. P. C. And further proceedings in accordance with law.
13. Muhammad Hanif respondent has applied under section 476, Cr. P. C. Read with section 195, Cr.
P. C. For prosecution of the petitioner for the offence under section 193, P. P. C. For the reason that the petitioner has falsely alleged in his application (Criminal Miscellaneous No. 3766/B/78) that the respondent had not disclosed in his application before learned Sessions Judge for bail that his application had already been rejected by the High Court and that he had also falsely stated in his affidavit that challan had been filed in Court.
Shaukat respondent (in Criminal Miscellaneous No. 2222/B/78) has also made a similar application that .The petitioner be punished suitably for having deposed falsely in his affidavit that Mr. Munir Ahmad Bhatti had already left the country, i.e. On 23rd of July, 1978. The fact of the matter is that Mr. Munir Ahmad Bhatti was allowed general adjournment on 22nd of July, 1978 by my Lord the Chief Justice but subsequently, the seat for air journey was not confirmed and Mr. Bhatti had left Lahore on 25th of July, 1978 by afternoon flight.
Both these applications are rejected on the short score that prosecutions .Of the petitioner will not be expedient in the interest of justice, which is the basic consideration in the disposal of such applications.