' FAZAL-E-MIRAN CHAUHAN, J.-- This order shall dispose of Criminal Miscellaneous No,984-B of 2006 "Saif-ur-Rehman v The State and others" and Criminal Miscellaneous No,667/B of 2006 "Saifur- Rehman v. The State", as both the bail petitions pertains to the same F.I.R. And bearing the same features.
2. Petitioner Saif-ur-Rehman, is seeking pre-arrest bail in case vide F.I.R. No,212, dated 1-6-2005, offence under sections 302, 324, 148, 149 and 109, P.P.C. For the allegations that the petitioner along with his co-accused, while armed with fire-arm weapons, committed the murder of Rana Wajid Ali, hence, this case.
3. It is contended by learned counsel for the petitioner that the petitioner is innocent and has been falsely implicated in case by the complainant with mala fide intention, as the petitioner has no concern whatsoever with the alleged offence. The petitioner has been declared innocent by the D.S.P. (Investigation), Khanewal. The petitioner has been involved along with his uncle Zulfiqar because of political rivalry. The petitioner, being declared innocent by the police during the investigation and having not arrayed as an accused in the indictment file before the trial Court and summoning bailable warrants of arrest at his own motion by the Court, entitles him the benefit of bail. The petitioner has been summoned by the trial Court under section 204, Cr.P.C., whereas, the petitioner was dealt with under section 91, Cr.P.C. Further contends that the learned trial Court passed the order for issuance of non-bailable warrants without applying its judicious mind to the fact and circumstances of the case and has totally ignored that the petitioner has been declared innocent in all the investigations. Co-accused Maqbool has already been granted bail by this Court vide order, dated 7-12-2005. Also contends that the learned trial Court has erred at law that the petitioner had already been declared innocent by the police and had even not arrayed him as an accused in any of the column report under section 173, Cr.P.C. In the police case, which is pending in the same Court and proceeded side by side with the private complaint. The case of the petitioner falls within the ambit of section 497(2), Cr.P.C., making his case that of further inquiry.
Even otherwise, the order passed is abuse of process of the Court and to secure ends of justice the same is liable to be ignored, having no adverse effect to the precedent of granting bail under sections 90/91, Cr.P.C. Reliance has been placed on Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 and Syed Muhammad Firdous and others v. The State '2005 SCMR 784, therefore, the petitioner is entitled for grant of bail before arrest.
4. Conversely, learned counsel for the complainant vehemently opposed the bail petition on the grounds that the petitioner is specifically named in the F.I.R. With specific role of causing fire-arm injury to the deceased. The ipsi dixit of police is not binding on the Court. The learned trial Court was competent and authorized to summon the accused in the complaint case after recording statement of the complainant and the P.Ws. The petitioner in compliance of the order (issuance of non-bailable warrants) should have appeared before the trial Court and the Court, while proceeding under section 91, Cr.P.C. And exercising his power was supposed to pass an appropriate order. Further contends that it is not a fit case for grant of bail before arrest.
5. The learned Assistant Advocate-General assisted by learned State Counsel contends that sections 91 and 204 to 506, Cr.P.C. Are interlinked. The trial Court under section 204, Cr.P.C., on receiving any complaint and after recording the statement of the complainant and P.Ws., having sufficient material summoned the petitioner through non-bailable warrants. The order is legal and very much in accordance with law.. Instead of directly appearing before the High Court, the petitioner should have appeared before the trial Court and the Court, while exercising his power under section 91, Cr.P.C. Would have passed appropriate order. Further contends that this is not an absolute rule as depending upon the compelling circumstances of the case, a person can directly approach the High Court by invoking its concurrent jurisdiction and such an application is moved to the High Court and it has been entertained and granted ad interim bail to the petitioner, then instead of dismissing the same on technical ground,-should dispose of on merits and in this respect, referred to Rais Wazir Ahmad v. The State 2004 SCMR 1167 wherein it has been held as under:-- "It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i,e, Sessions Judge in the matter of bail before arrest because propriety so demanded but it is not a absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant then instead of dismissing it on technical grounds it should have disposed it of on merits. As in this case the charge against the petitioner is under section 506, P.P.C. And allegedly case has been registered against the petitioner at the instance of complainant due to his political influence as has been narrated in application for grant of bail, then the Court instead of rejecting plea of the petitioner for bail before arrest ought to have decided application on merits."
' Further contends that process under section 204, Cr.P.C. Is issued to secure the attendance of accused persons through summons or warrants, so as to bring them before the Court for commencement of the proceedings before the said Court. If the summonses are issued, then they are required to attend the Court on the date mentioned in it, or if warrants are issued then the accused are brought before the Court. The word used in this section "brought and appears are very significant". When a person is present in response to summons or warrants, before officer Presiding any Court who is empowered to issue summons or warrants, then such officer may direct said person to execute the bond with or without sureties for his appearance in such Court. Similarly, in section 91, Cr.P.C, 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 surety. No detail is given in this section as to how the bond should be executed, forfeited, amount of bond and instead of bond other recognizance can be executed and the person is released after execution of bond, but no further detail is given in section 91, Cr.P.C. As to how a person can be released in case of bailable or non-bailable offences, thus, to fill up the deficiency of section 91, Cr.P.C., Chapter XXXIX of bail would be attracted, which started from sections 496 to 502, Cr.P.C., which deals in cases where the bail is required to be taken in discharge of the sureties. Also contends that sections 91, 204, 496 and 497(2), Cr.P.C. Are linked with each other. Any person arrested or detained without warrant by the officer incharge of the police station or appears or brought before the Court, is prepared to give bail, then such person shall be released on bail under section 496, Cr.P.C. In section 497, Cr.P.C., if the accused persons involved in a non-bailable offence, then in such case, where such person, is arrested or detained without warrant by an Officer Incharge of police station or appears or is brought before the Court, he may be released on bail, but shall not be released if there appears reasonable grounds for believing that he has been guilty of the offence punishable with death or imprisonment for life etc. Finally contends that if the accused person before the process is served upon him or bailable warrants are served to invoke the provisions of pre-arrest bail under section 498, Cr.P.C, then he can approach the appropriate Court for grant or otherwise of pre-arrest bail after satisfying the condition, mentioned therein. In this respect, reliance has been placed on Noor Bibi and 3 others v. The State 2005 PCr.LJ 505:
6. Having heard the learned counsel for the parties and gone through the material available on record i,e, F.I.R., challan submitted by the police and the-private complaint filed by the complainant. It is found that the facts of the F.I.R. And the private complaint as well as the accused are the same. It transpires that the direct complaint has been filed against the petitioner and other co-accused when they have been found innocent by the police. The petitioner and co-accused are not named in the report under section 173, Cr.P.C. Submitted for trial and the petitioner though named in the F.I.R. Was not arrested by the police. In the direct complaint filed by the complainant, learned trial Court after recording cursory evidence, issued non-bailable warrants of the petitioner for causing his appearance in the Court. The petitioner having come to know about the issuance of non-bailable warrants invoked the jurisdiction of this Court under section 498, Cr.P.C., seeking pre- arrest bail. It is admitted that the petitioner is named in the F.I.R. And specific role has been ascribed to him for having caused fire-arm injury on the head of Rana. Wajid Ali (deceased).
However, during the investigations conducted by the police, the petitioner was found innocent and was not being arrested by the police at any stage.
7. The petitioner is an Advocate by profession and appears to have been falsely roped in this case with mala fide intention of the complainant in order to expand the ratio of net on his family. The petitioner, being not arrested, withdrew his bail application, filed in the Court of learned Additional Sessions Judge, and left for Saudi Arabia. In absence of the petitioner, the complainant moved an application to the trial Court to summon the petitioner and other co-accused in the challan case.
However, he also filed a private complaint before the Court against the petitioner and other co- accused, not challaned by the police. The learned trial Court, after recording the cursory evidence, found some material and substance in the evidence, issued non-bailable warrants under section 204, Cr.P.C. For causing appearance of the petitioner through police. The petitioner apprehending his arrest approached this Court seeking bail before arrest on the grounds that at the very outset, the learned trial Court, on the same evidence on which the petitioner was declared innocent by the police had issued non-bailable warrants against him. It manifests that the learned trial Court, while exercising powers under section 204, Cr.P.C. Had issued non-bailable warrant under section 91, Cr.P.C. For causing appearance of the petitioner.
8. The question arises whether the learned trial Court by issuing non-bailable warrants under section 204, Cr.P.C. In a direct complaint, is required to release the accused merely on bond, as required under section 91, Cr.P.C. Or bail is to be granted within- the meaning of section 497, Cr.P.C.
After his arrest, when the accused is involved in a non-bailable offence or is produced before the Court. The judgment cited by the learned A.A.-G. Reported as 2005 PCr. LJ 505 in which after discussing sections 91, 204, 496 and 497, Cr.P.C., the learned Single Judge comes to the conclusion that, in any case, if the petitioner is summoned under section 204, Cr.P.C. And he appears before the Court, who is bound under section 91, Cr.P.C. To order the petitioner to submit bond for his release on bail. No provision or procedure is provided as to how the accused person can be released in a bailable or non-bailable offence under section 91, Cr.P.C. It has been further held in the above cited judgment that the chapter pertaining to bail would be attracted starting from sections 496 to 502, Cr.P.C., which deals that "in what cases bail is required to be taken till the discharge of the surety". The learned Single Judge has further held that sections 91 and 204, Cr.P.C.
Are to be read with sections 496 to 502, Cr.P.C. For the purpose of releasing the accused, involved in a bailable or non-bailable offences, thus, the objection raised by learned counsel for the complainant that the petitioner should have appeared before the learned trial Court in response to non-bailable warrants issued and shall surrender himself and to apply his bail after arrest under section 497, Cr.P.C. And it is for the trial Court to pass an appropriate order or to direct him to submit bond or sureties and release him on bail or send him to the judicial lock-up. It is also held by the learned Judge that if an accused person before the process is served upon him or bailable warrants are served or can invoke the provision of such section, after satisfying the condition mentioned therein. The objection is fully answered in the said judgment and relying on the same that section 91, Cr.P.C. Cannot be applied in isolation, but it is to be applied and read with sections 496 and 497, Cr.P.C. For the purpose of release of an accused against whom a process is issued under section 204, Cr.P.C. By the Court.
9. As regards merits of the case, admittedly, the petitioner has been declared innocent by the police and no challan has been submitted against him. On the same evidence, the learned trial Court found the petitioner to be guilty of the offence and issued non-bailable warrants, which makes the case of the petitioner that of further inquiry. There is a previous enmity between the parties. The statements of the complainant and the P. Ws. Are still subject to cross-examination to prove the guilt of the petitioner. The allegation against the petitioner cannot be properly thrashed out at this stage. Deeper appreciation of evidence cannot be taken into consideration at this stage, as the case of the petitioner requires further probe as contemplated under section 497(2), Cr.P.C.
10. For what has been discussed above, this bail petition is accepted and ad interim pre-arrest bail already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.