' This application is under section 497 (5), Cr. P. C. It is contended by the learned counsel for the applicant that a direct complaint was filed under section 330/342/506, P. P. C. In which the learned trial Judge passed the following order on 31st May, 1978 :- "Perused the complaint, statement of complainant and statements of Muhammad Shafi, Nazir Ahmed, Basharat Rasool. Prima facie case under sections 330/342/506/34, P. P. C. Appears to have been made out and there are sufficient grounds for proceeding against the accused, named in the complaint. Issue s/s to the accused to attend this Court on 6th July, 1978."
2. It is further pointed out that the respondent No, 1, did not appear on the date fixed for his appearance 6th July, 1978 and bailable warrants were issued against him. In the meantime on 11th July, 1978 be (Respondent No, 1) filed an application and submitted before the trial Court, giving reasons explaining his inability, for his non-appearance on the date of hearing. The learned Judge passed the following order on 11th July, 1978 :- "Satisfied with the explanation given. Order dated 6th July, 1978 is recalled. The accused is released with the direction to execute P. R. Bond in the sum of Rs, 3,000 for he appearance in the Court."
3. The learned counsel, Mr. Shaikh Mushtaq Ali argues that this order is illegal, because the provisions of section 497 (2), Cr. P. C. Are not attracted. He further submits that though offences under sections 330/342, P. P. C. Are boilable but offence under section 505 is non-bailable, for which cognizance was taken by the learned trial Judge. Therefore, it implies that non-boilable warrants should have been issued in the first instance, against the Respondents, who are not entitled to remain, only on P. R. Bond, when the trial Court, after recording the statements of the complainant and two more P. Ws. Was satisfied that prima facie, offences under sections 330/342 and 506, P. P. C. Appeared to have been made out. Consequently the respondents were not entitled to be released on the P. R. Bond. He has placed reliance on the cases reported in
(1) 19 D L R 39 (SC),
(ii) PLD 1966 SC 589,
(iii) PLD 1952 Sind 43, (0) 7 D L R 9,
4. On the other hand Mr. Hassan Inamullah appearing for the respondents, has submitted that the applicant was an accused facing trial for offences under sections 307/34, P. P. C., along with the other co-accused Mr. Mumtaz Ali Bhutto, Khanzada Abdul Waheed and other. The applicant was granted pardon and was made an approver. Later on he had given a go-bye to the prosecution and had repudiated his earlier statement under section 164, Cr. P. C. The pardon granted to him was, under the circumstances, forfeited and he was taken to be an accused in the case. His case was however, bifurcated, in which he has to face the trial, for offences under section 307/34, P. P. C.
5. The applicant filed a direct complaint in respect of certain acts, which were committed during the time, when he was in custody of the police. It is alleged that during police custody, he was tortured and induced by respondents, to make the statement under section 164, Cr. P. C. Which were extorted from the applicant, when he was wrongfully confined by the police. Mr. Hassan Inamullah has today, produced a certified copy of the complaint, which was not filed with the application. It has been argued by him that process was issued under section 204, Cr. P. C. The learned Judge was competent to issue the summons in the first instance. It was only on account of non-appearance of the Respondent No, 1 on 6th July, 1978 that bailable warrants were issued against him, which were subsequently recalled, on being satisfied with the explanation, submitted by the Respondent No, 1, who at the time of alleged occurrence, was D. S. P. Eidgah Police Station Karachi and Respondent No, 2 was the S I P/S H 0 Jackson Police Station Karachi. It has therefore been finally submitted that there is no error in the order, passed by the learned trial Judge, releasing respondent No, 1 on furnishing P. R. Bond in the sum of Rs, 3,000 and respondent No, 2 who had appeared in response to the summons.
6. I have heard both the learned counsel at length and hav perused the documents on the record.
The direct complaint has also been gone through by me. _ The learned Judge had issued summons in the first instance, against the Respondents, which under the law, he was competent to do. Subsequently, when one of the Respondents had failed to appear, on the date of hearing, for which he had submitted explanation, which was accepted, and the learned Judge had directed, by the order dated 1 I th July, 1978, to furnish P. R. Bond, in the sum o Rs, 3.000. Under section 497 (2), Cr.
P. C., it is clear, that when it appears to the Court, at any stage of the trial, as the case may be, the Court may at its discretion, release the accused, on the execution by him, of a bond, without sureties for his appearance as was done in this case.
7. I find the order passed by the learned Judge was proper and legal. The application is misconceived and is accordingly dismissed.
8. Before parting with this matter, I found that, in the ground No, I of the application, it was stated as under :- The opponents/respondents are holding important posts in police services. They have influenced a man of the status of a Sessions Judge, who has released them on P. R. Bond by disregarding the relevant law for release of an accused of non-bailable offence.
9. Before allowing the learned counsel to argue this application, I had pointed out to him, that this was clear contempt of the Court and I was inclined to issue a show-cause notice to him. As soon as this fact was pointed out to him, without losing any time, Mr. Shaikh Mushtaq All realised the position, and tendered him unqualified apology. In addition, he has also submitted, in writing, an application expressing regrets and praying before the Court for taking a 'lenient view. He is young man and finds it difficult to control his feelings. Even the trial Judge had also issued him a show- cause notice as to why action should not be taken against him for contempt of the Court. He is accordingly warned with no further action against him.
10. I accept the apology and consider that a warning would meet the ends of justice.