' MALIK SAEED EJAZ, J.---Muhammad Yasin-petitioner has sought post-arrest bail in private complaint (Muhammad Fazil v. Muhammad Yasin and others) filed by Muhammad Fazil/ respondent No,2, for offences under sections 302/148/149, P.P.C, 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 fire-arm 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 F.I.R. No,322 of 2004 on 14-11-2004 at Police Station Tulamba, District Khanewal, against the petitioner and four others. In four successive investigations the petitioner as well as other co-accused were declared innocent.
Feeling aggrieved by the said investigations the complainant filed the instant complaint, in which after recording preliminary evidence the learned trial Court vide order dated 2-8-2006 had summoned the petitioner and others to face trial.
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 16-4-2007, hence this petition.
5. Learned counsel for the petitioner submits that the petitioner was never arrested in police case bearing F.I.R. 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.
7.(sic) 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 trial, as such the learned trial Court would have directed 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 v. The State 2005 SCM R 784, Maqbool Ahmad and others v. The State 1997 PCr.LJ 1074 and Mazhar Hussain Shah v. The State 1986 PCr.L.J 2357.
8. On the other hand, learned D.P.G. Assisted by the learned counsel for the complainant submits that F.I.R. 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.
9. 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 19-1-2006.
Record reveals that case F.I.R. 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, arc found correct.
10. 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.0 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 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.
11. In the above cited case by the learned counsel for the petitioner it is held by the Honourable 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."
12. 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 trial 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 instead 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.
13. The case-law cited by the learned counsel for the petitioner is very much applicable in the instant case, I would like to reproduce the relevant extracts of the same. In the case reported as 2005 SCM R 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 PCr.LJ 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 case published as 1986 PCr.LJ 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 bond 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."
14. 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 16-4-2007 passed by the learned Additional Sessions Judge, Khanewal, is not sustainable, hence, the same is set aside.
15. Keeping in view the facts and circumstances of the case and relying upon The above referred judgments, I 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.
16. 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 (F.I.R. No,322 of 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.
17. This petition in the above terms, stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.