1. ' This order will dispose of pre-arrest bail application filed by the above-named applicants involved in Crime No,M-1 of 2001 of Police Station Hassan Ja Bhan at Gachero.
2. ' The facts giving rise to the present application are that there was dispute between complainant party and accused party over agricultural land. On 19-5-2001 at 8 a.m. Complainant Abdul Rahman, his son Manzoor alias Manthar, his relatives namely Ali Nawaz, Muhammad Ishaque, Ghulam Abbas, Muhammad Ayoob and Allah Warayo were working in their fields situated in Deh Khairodero, Taluka Moro. The applicants Noor Nabi and Arshad armed with Guns, applicant Qurban and Dost Muhammad Armed with Lathies along with nine other persons armed with Lathies came there. The applicant Noor Nabi started abusing the complainant party and told them to vacate the land otherwise they would be killed. The complainant party refused to listen to them. Therefore, the applicant Noor Nabi instigated the others to kill the complainant party. The applicant Noor Nabi then fired from his gun at the complainant but it was missed. He again fired at the complainant but the fire hit P.W. Manzoor who fell down on the ground. The applicant Arshad fired from his gun which hit P.W. Ali N,awaz who also fell down on the ground. The applicants Qurban and Dost Muhammad gave Lathi blows to the relatives of the complainant and other accused caused kicks and fists blows to P.Ws. Thereafter the accused party forcibly dispossessed the complainant party from the land. On the cries, witnesses arrived at the place of incident and thereafter the complainant and injured were taken to the police station but the police did not record the F.I.R.; therefore, they approached this Court. Under the directions of this Court, the F.I.R. Was lodged. A pre-arrest bail application was moved before the trial Court but the same was dismissed hence the present application.
3. ' The learned counsel for the applicants has stated that on same facts and against the same accused persons, the complainant had lodged direct complaint in which the process was issued against all the accused persons but they have been granted and released on bail by the said Court; therefore, the applicants are entitled to the concession of bail in this case also. He has relied upon 1986 PCr.LJ 2359. He has further stated that the applicants have been involved due to enmity; that the accused party had also lodged the F.I.R, against the complainant party which the police are investigating; that there are counter-versions about the said incident; therefore, the applicants are entitled for the concession of bail.
4. ' On the other hand, learned State Counsel has admitted that the complainant had filed direct complaint by narrating the same facts against the same accused persons before the Court but further added that as the police did not arrest the applicants due to their influential position; therefore, the direct complaint was lodged; that the process has been issued against the accused persons as bailable warrants were issued against them but they have been released after furnishing surety without granting bail by the trial Court; that the offences are non-bailable; therefore, the accused would not have been released merely on furnishing surety without granting bail in terms of section 497, Cr.P.C. He has further stated that due to influential position of the applicants, the police did not record the F.I.R. But recorded the F.I.R. Of accused party with mala fide intention; that the role of causing injuries has been assigned to all the applicants; therefore, they are not entitled to the concession of bail.
5. ' I have given due consideration to the arguments and have gone through the material available on the record very carefully. On the earlier dates, the counsel for the applicants got the matter adjourned to produce the order by which the applicants were granted bail in direct complaint case. The counsel for the applicants did not produce the bail order on the ground that no such order was passed but produced the affidavit of surety which was accepted by the trial Court on 12- 8-2002 and released the accused.
6. ' I have gone through the contents of direct complaint and the F.I.R. I find that the facts are same, the accused are also same. It appears that the direct complaint was filed because the police did not arrest the applicants even after lodging the F.I.R. In the direct complaint, the process was issued against the applicants and other co-accused persons in the shape of bailable warrants as required under fourth column of Schedule-II attached to the Cr.P.C.
7. ' In pursuance of the B.Ws. The accused appeared before the Court but the Court released them on executing bond with surety without passing any order granting bail to them as required under section 497, Cr.P.C.
8. ' Important question has been raised in this application as to whether the Court issuing process under section 204, Cr.P.C. In a direct complaint, is required to release the accused merely on bond as required under section 91 of Cr.P.C. Or a bail is to be granted within the meaning of section 497, Cr.P.C., when the accused involved in non-bailable case appeared before the Court issuing the process against them.
9. ' In the case of Mazahar Hussain Shah v. State reported in 1986 PCr.LJ 2359, it has been observed that in a case of private complaint when the accused appear before the Court in pursuance of process issued against him under section 204, Cr.P.C. Then the accused is simply required to execute a bond with or without surety for their appearance as provided under section 91, Cr.P.C.
10. With utmost respect to the Honourable Judge, I am unable to agree with the said proposition because of following reasons:-- ' This point can be properly appreciated if the scheme of Criminal Procedure Code is examined relating to the institution of case, issuing of process and ultimately trial.
11. ' A perusal of Criminal Procedure Code reveals that it is divided into parts, which are divided in Chapters and that are again sub-divided in sub-chapters. The parts, chapters and sub-chapters have been given headings to emphasis subject on which they deal. Some of the subjects are general in nature. Some of the subjects are special, contain special provisions to deal with special situation and some of the subjects arP supplementary, contain supplementary provisions to add, supplies deficiency, fill need, give further information to other provisions. This scheme of the Code may be kept in view, to understand the further discussions.
12. ' If an offence is committed then the aggrieved party may file report before an officer of police station within the meaning of section 154, Cr.P.C. Or file a direct complaint before the competent Court under section 200, Cr.P.C. Or the Magistrate on his own information comes to know about the commission of offence. Basically there are three stages in a case:--
(1) Institution of proceedings,
(2) Commencement of the proceedings before the Court and
(3) Trial.
13. ' Conditions requisite for initiating proceedings are dealt with in sub-chapter "B" of Chapter XV of Part VI of Cr.P.C. Part-VI of the Code deals with "proceedings in prosecutions". It has 17 Chapters; starting from Chapters XV to XXXIII. For the purpose of present proceedings, Chapters XV, XVI, XVII and XX are material. Chapter XV is divided into two sub-chapters "A" and "B". Sub-chapter "A" deals with "place of enquiry or trial". Sub-chapter "B" deals with "conditions requisite for initiation of proceedings". Chapter XVI deals with "of complaints to Magistrates", Chapter XVII deals with "of the commencement of proceedings before Court", Chapters XX, XXII and XXII-A deal with "trial before Magistrates, summary trials and trials before High Court and Court of. Session" respectively.
14. ' Sub-chapter "B" of Chapter XV "conditions requisite for initiation of proceedings" of Part VI of the Code is spread into 15 sections starting from sections 190 to 199-B. One of the conditions requisite for initiation of proceedings is of taking cognizance by the Magistrate on a police report (section 173, Cr.P.C.),
2. On a direct complaint constituting the facts of offence when the complaint is filed under section 200, Cr.P.C. And 3. On information received from any person other than Police Officer or upon Magistrate's own knowledge or suspicion. Under section 190, Cr.P.C. The proceedings of a case start by taking cognizance, on the above three sources of information received by a Magistrate. If the direct complaint is lodged and after taking cognizance under section 190, Cr.P.C.
15. Then Chapter XVI of Part VI would come into operation which has only four sections starting from sections 200 to 203, under which the Court is authorized to hold preliminary enquiry and if it comes to the conclusion that no case has been made out then the complaint is required to be dismissed under section 203, Cr.P.C. But if from the enquiry it is found that the offence has been committed then the Chapter XVII "of the commencement of proceedings before Court" would come into operation. If the proceedings are initiated on any of the abovementioned three sources viz. Police report, direct complaint or personal knowledge of the Magistrate, then the proceedings of a case commences by issuing the process as required under section 204, Cr.P.C. Section 204, Cr.P.C. Reads as under:-- "section 204. Issue of process.--- (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceedings, and the case appears 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 thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provisions of section 90.
(3) When by any law for the time being in force any process fee or other fees are payable, no process shall be issued until the fees are paid and if such fees are not paid within a reasonable time, the Court may dismiss the complaint."
16. ' A perusal of this section reveals that after taking cognizance of an offence (on any of the source of information mentioned in section 190, Cr.P.C.), if the Court is of opinion that there are sufficient grounds for proceeding and the case appears to be one in which according to the fourth column of the Second Schedule, a summons should be issued in the first instance then the Court shall issue summons for the attendance of the accused, but if the Court forms an opinion that the case appears to be one in which according to the abovementioned column, a warrant should be issued in the first instance then it may issue a warrant or if the Court thinks fit a summons may be issued for causing the accused to be brought or to appear at a certain time before such Court or if the Court has no jurisdiction then to some other Court having jurisdiction in the matter. Under subsection (2), it is provided that provision of section 90, Cr.P.C. Shall not be deemed to be: affected because of the above provision.
17. ' A general perception is that section 204, Cr.P.C. Is applicable to a case filed on a direct complaint only but the wording of the sections "if in opinion of a Court taking cognizance of an offence" are very significant and clear. Under which if the Court takes cognizance of an offence on any of the sources of information mentioned in section 190, Cr.P.C. Viz. On police report, on direct complaint or on a Magistrate's personal information, the process can be issued under section 204, Cr.P.C. This is the only provision through which the proceedings are commenced in the Court of law. In my humble view, under the Chapter XVII "of the commencement of proceedings before the Court" the proceedings will commence before any Court if after taking cognizance as required under section 190; Cr.P.C. On any sources mentioned in it, process is issued to the accused persons. Reference is invited to a case of Raghunath Puri v. Emperor reported in AIR 1932 Pat. 72 and Muhammad Aslam v. Additional Secretary, Government of N.-W.F.P. Reported in PLD 1987 SC 103. This Chapter which is independent by itself has two sections viz. 204 and 205. Section 205, Cr.P.C. Deals with the power of Magistrate to dispense with the personal attendance of the accused. Once the proceedings are commenced under section 204, Cr.P.C. Then process of trial begins by framing of the charge as required by various sections of Chapter XIX and then starts the trial before Magistrate, summary trial and trials before High Court and Court of Session as provided under Chapters XX, XXII and XXII- A.
18. ' From the perusal of section 204, Cr.P.C. It reveals that the process is issued to procure the attendance of accused persons through summons or warrants so as to bring them or to appear before the Court for the ,commencement of proceedings before the Court. If the summons are issued then they are required to attend the Court on the date mentioned in it or if the warrants are issued then the accused are brought before the Court and if the accused come to know that process has been issued against them but the summons or warrants have not been served or bailable warrants are served then they can appear before the Court. If the accused is already in custody then by issuing production warrant for producing the accused before the Court, the proceedings are commenced in the Court. The words used in this section "brought" and "appear" are very significant which should be kept in mind for future reference. Under the scheme of Criminal Procedure Code, Chapter III, deals with general provisions which has only one Chapter namely Chapter VI "process to compel appearance". This is sub-divided into four chapters viz. "A" to "D". Subchapter "A" deals with summons, sub-chapter "B" deals with warrants of arrest, sub-chapter "C" deals with proclamation and attachment and sub-chapter "D" deals with other rules regarding process. Thus, under this Chapter, general provisions are provided for issuance of process to compel the appearance of all persons through summons, warrants and in case of non- compliance of warrants, then actions by issuing proclamations and attachment and then other rules regarding process. In this Chapter forms of summons, warrants, the officers who are competent to issue such process and who are to serve the process, the manner in which process are served and so on so forth are provided. The relevant sub-chapter is sub-chapter "D". It starts from sections 90 to 93-C. Section 90 deals with the issuance of warrants in lieu of, or in additional to summons. Section 91 empowers the Court to take bonds for appearance when the persons against whom the process is issued by executing a bond with or without sureties. Sections 92 and onwards are not relevant for the purpose of present discussion. The important provision viz. Section 91 reads as under:- "Section 91. 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."
19. A bare reading of this section reveals that when a person is present, in response to summons or warrant, before the Officer Presiding any Court who is empowered to issue summons or warrants then such officer may direct the said persons to execute a bond with or without sureties for his appearance in such Court. Usually under this provision when the complainant or witness appears before the Court in response to summons issued to them and the case is adjourned then bonds with or without sureties are taken from those persons for their appearance on the next date of hearing. However, the words "any person" used in this section are very wide. The said persons can be broadly divided into two categories
(1) Accused of an offence which is again sub-divided:
(a) involved in bailable offence;
(b) involved in non-bailable offence;
(2) Any other person including complains nt, witnesses or any person whose appearance is required by the Court excepting above-named persons.
20. ' The section 91 is appearing in the Part-Ill, Chadter VI, Cr.P.C, which contains general provisions relating to the process to compel appearance of any person. This Chapter would deal with any process issued against any persons under the Code. Thus, under this Part of Code, general powers have been given to the Court to deal wi|th the issue of process and its related matters.
21. ' A perusal of Criminal Procedure Code further reveals that there are supplementary, provisions which have been enacted to supplement the other provisions which require further addition or clarification. Part-IX of Criminal Procedure Code deals with such provisions and its heading is "Supplementary provisions". The word "supplementary" is derived from the word "supplement". The dictionary meaning of word 'supplement" is defined in Chambers Dictionary as under: - "Supplement sup'li-ment, n that which supplies a deficiency or fills a need; that which completes or brings closer to completion; an extra part added (later) to a publication, giving further lc information or listing corrections to earlier mistakes".
22. ' Thus, supplementary provisions have been enacted to supply deficiency or fill a need or give further information to already enacted provisions. This part has 9 Chapters starting from Chapters XXXVIII to XLVI. In order to make the point further clear, it is pointed out that Chapter XXXVIII is in respect of "the Public Prosecutor" starting from sections 492 to 495, Cr.P.C. Dealing with the appointment of Public Prosecutor and their powers. In the Code wherever the word "Public Prosecutor" is mentioned, the same is to be interpreted within the provisions of Chapter XXXVIII. For example in section 265-A, Cr.P.C., the prosecution is to be conducted by a "Public Prosecutor" but there is no provision in the said section as to who would be the Public prosecutor, what will be his powers so on and so forth. Therefore, for these further clarifications, one as to refer to sections 492, to 495, Cr.P.C. Which are supplementary provisions to section 265-A, Cr.P.C. Where the word "Public Prosecutor" is mentioned. Therefore, section 265-A, Cr.P.C. Is to be read with sections 492 to 495, Cr.P.C. For the purpose of giving clarification to word "Public Prosecutor".
23. ' Similarly in section 91, the word "bond" has been referred which is to be executed by a person who appears before the Court for his appearance either with or without sureties. No further details have been mentioned as to how the bond should be executed, forfeited, amount of bond, and instead of bond other recognizance can be executed so on and so forth; therefore, for those matters, we have to refer to other provisions of the Code. Chapter XLII "Provisions as to bonds" appearing in Chapter IX "supplementary provisions", would be referred to and read with section 91, Cr.P.C. Dealing with above subject. Similarly under section 91, Cr.P.C. Any person is to be released after executing bond.
24. Any person, includes an accused of an offence. No further details have been mentioned in it as to how the accused person can be released in case of bailable or non-bailable offence. For obtaining further details and fill the deficiency of section 91, Cr.P.C. Chapter XXXII of Supplementary Provisions, Part-IX, Cr.P.C. "on bail" would be attracted which starts from sections 496 to 502, Cr.P.C. Which deal "in what cases bail is required to be taken till the discharge of the sureties". As such section 91 is to be read along with the sections 496 to 502, Cr.P.C. For the purpose of releasing the accused involved in bailable or non-bailable offences.
25. ' A perusal of section 496, Cr.P.C. Reveals that when any person is arrested, detained without warrants by Officer Incharge of a police station or appears or brought before the Court and is prepared to give bail then such person shall be released on bail. Under section 497, Cr.P.C. If the accused person is involved in a non-bailable offence, then in such case where such person is arrested or detained without warrants by, an Officer Incharge of a police station, or appears or is brought before the Court, he may be released on bail but shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. Thus, under both these provisions, an order granting bail is to be passed before releasing an accused person who appears or is brought before the Court, and who is involved in a bailable or non-bailable offence. Without grant of bail such person cannot be released on bail. Bonds are to be executed after grant of bail. If section 91 is read with section 49'6 and 497, Cr.P.C. Then there will be no hesitation in holding that when an accused person involved in a case of bailable or non-bailable offence against whom the process is issued under section 204, Cr.P.C. Then he is to be released on bail within the meaning of section 496 or 497, Cr.P.C. As the case may be and then would execute bonds with or without surety. The word "appears". Or "brought" appearing in section 496 and 497, Cr.P.C. Are the same words which have been used in section 204, Cr.P.C., for which I have already made such reference in the earlier part of the order.
26. ' From the above position, it is clear that once the accused person or persons are brought or appear before the Court in pursuance of process under section 204, Cr.P.C. Issued either on, a police report, direct complaint or Magistrates own personal information, then the Court is required to decide as to whether the offences are bailable or non-bailable. If the offences are bailable then the Court shall release the accused on bail within the meaning of section 496, Cr.P.C. By passing appropriate order.. However, if the offences are non-bailable, then the accused person or persons are required to be remanded to judicial custody or the Court may grant bail to them within the meaning of section 497, Cr.P.C. After complying the requirements of the said section by passing a speaking order. If the accused person or persons before the process is served. Upon them or bailable warrants are served want to invoke the provisions of pre-arrest bail as provided under section 498, Cr.P.C. Then they can approach the appropriate .Court for grant or otherwise of the pre-arrest bail by invoking the provisions of said section after satisfying the conditions mentioned therein. The provisions of sections 496, 497 and 498, Cr.P.C. Have elaborately been discussed by the Honourable Supreme Court of Pakistan in. Cases Sadiq Ali v. State PLD 1966 SC 589 and Muhammad Ayoob v. Muhammad Yakoob PLD 1966 SC .1003.
27. ' Thus, the section 91, Cr.P.C. Cannot be applied in solution, but it is to be applied and read with sections 496 and 497, Cr.P.C. For the purpose of release of an accused person against whom a process is issued under section 204, Cr.P.C. By the Court after taking cognizance on any source of information mentioned in section 190, Cr.P.C.
28. ' In the present' case, the offences were non-bailable. When the applicants appeared befoie the trial Court in pursuance of bailable warrants issued under section 204, Cr.P.C. For their appearance, the trial Court without granting bail within the meaning of section 497, Cr.P.C. Released the applicants on the affidavits filed by the .Surety. The said procedure was not warranted by law; therefore, the trial Court was not justified in releasing the accused without granting of bail through an order passed under section 497, Cr.P.C. The trial Court is required to comply with provisions of section 497, Cr.P.C. In the direct complaint case. Thus, the argument of the counsel for the applicants has no force that the trial Court had granted bail to the applicants.
29. ' As regards merits of the case, admittedly there are counter-cases between the parties, with regard to the same incident. Both the parties claim that the other party was aggressor. There is dispute between the parties over the agricultural land on which the incident took place. Both the parties claim to be in possession and owners of the said land. All these points cannot be properly thrashed out at this stage as it requires evidence to prove each assertions and that has to be scrutinized at the time of trial. It involves deeper appreciation of evidence which cannot be undertaken at this stage. Thus, the case requires further enquiry as contemplated within the meaning of section 497(2), Cr.P.C. Therefore, the applicants are entitled for the concession of bail.
30. Reliance is placed on the cases of Shoaib Mehmood Butt v. Iftikhar 1996 SCM R 1845, Shafique v.
31. Hashim Ali 1972 SCM R 682.
32. 'Consequently, bail is granted to the applicants in the sum of Rs,1, 00,000 (one lac) each on furnishing solvent surety with P.R. Bond in the like amount to the satisfaction of the trial Court.
33. ' The application is allowed.