' MALIK SAEED EJAZ, J.---Zahid Yousaf son of Muhammad Yousaf-petitioner in Criminal Miscellaneous No,14-B of 2008 and Mustafa son of Muhammad Siddique-petitioner in Criminal Miscellaneous No,2068-B of 2007 have sought post-arrest bail in case F.I.R. No,141, registered at Police City Burewala, District Vehari, on 15-03-2007 for offences under sections 302/452/337-F (i)/148/149, P.P. C.
2. As both the matters arise out of the same F.I.R, these are being disposed of through this single order.
3. The earlier petition seeking the same relief filed by Zahid Yousaf-petitioner was dismissed by the learned Additional Sessions Judge, Burewala, vide order dated 31-10-2007, while the bail petition filed by Mustafa-petitioner also met the same fate vide order dated 6-8-2007 passed by the same learned Judge.
4. Brief facts of the case, according to F.I.R., are that the petitioners along with 21 other persons, armed with fire-arms and sotas, trespassed into the house of complainant in order to dispossess him. It has been alleged that the accused started firing and the petitioner caught hold of Muhammad Shafi-deceased with the help of his co-accused while Asghar co-accused caused a fire shot which landed at the chest of deceased, who succumbed to the injuries at the spot. While Zahid Yousaf-petitioner caused butt blow with his gun, which hit Muzzamil P.W. At his right arm. As soon as the inhabitants of the vicinity were attracted, then all the accused fled away from the scene with their respective weapons.
5. The motive behind the occurrence was the dispute over possession of a residential house, which was in possession of the deceased-Muhammad Shafi.
6. Learned counsel for the petitioners submits that civil litigation is pending between the parties; the deceased Muhammad Shafi was in fact a well-known members of Qabza Group and many F.I.Rs, were already registered against him; that the complainant of this case has nominated sixteen accused and seven unknown persons including the petitioners in the F.I.R. But only one injury had sustained by the deceased, namely, Muhammad Shafi, which is specifically attributed to co-accused Asghar; that as far as the injury attributed to Zahid Yousaf-petitioner is concerned, the same has been declared "Ghayr-Jaifah Damiyah", which falls within the definition of section 337-F
(i) P.P.C. And has been declared to be caused with blunt weapon as only abrasion with swelling was noted by the medical officers on the upper right fore-arm of Muzammil-P. W. Similarly, the allegation against Mustafa-petitioner is that he caught hold of the deceased by his arms and pushed him towards "Baithak" only and did not cause any injury to the deceased as well as to any of the P. Ws; and that the complainant, being dissatisfied of the investigation, had also filed a private complaint regarding the same occurrence against the petitioners and others, in which learned trial Court summoned them and they were admitted to bail therein; that as the Challan case is attached with the private complaint, proceedings in the complaint case would be started first and ultimate decision would also be made in the complaint. As the petitioners have been admitted to bail in the private complaint on the basis of same facts as narrated in the F.I.R., therefore, they are entitled to bail in the .Challan case as a matter of right. In support of his contentions, learned counsel has placed reliance on the cases reported as Mazhar Hussain Shah v.
The State (1986 PCr.LJ 2359) and Syed Muhammad Firdaus and others v. The State (2005 SCM R 784).
7. Learned counsel for the petitioners elaborates that in the light of above cited cases section 91, Cr.P.C. Is applicable for grant of bail even in the Challan case and as the petitioners have been admitted to bail in the complaint case under section 91, Cr.P.C. Hence said provisions of law would also apply in the connected Challan case and the petitioners deserve bail as a matter of right.
8. Conversely, learned Deputy Prosecutor-General assisted by the learned counsel for complainant states that petitioners are nominated in the F.I.R. With specific role; that weapons of offence have also been recovered at the instance of the petitioners; that the petitioners with common intention formed unlawful assembly consisting of 23 accused and trespassed into the house of Muhammad Shafi-deceased, while armed with fire-arms and in order to dispossess the complainant party from the house regarding which civil litigation is pending between the parties in the Civil Court, and, thus, they have committed house trespass with common intention; that as a result of such unlawful assembly and common intention, one person namely Muhammad Shafi, father of the complainant, died at the spot after receiving a fire-arm injury at the hands of Asghar co-accused (absconder) and Muzammil-P.W. Sustained injury at the hands of Zahid Yousaf petitioner; and that the other petitioner Mustafa is the main accused 'though he has not caused any injury to anybody but motive is specifically attributed to him. Hence, both the petitioners are not entitled for the grant of bail.
9. In reply to the proposition put forward by the learned counsel for the petitioners for grant of bail as a matter of right under section 91, Cr.P.C., learned counsel for the complainant has vehemently opposed it by arguing that section 91, Cr.P.C. Is not applicable in the instant case as the petitioners are seeking bail in the Challan case of F.I.R. No,141 of 2007 lodged by the complainant. The petitioners have already been arrested in the Challan case and they have applied for grant of post-arrest bail under section 497, Cr.P.C. And in fact section 497, Cr.P.C. Is applicable for grant or refusal of bail in criminal cases registered through F.I.R. Section 91, Cr.P.C., which is a general section, does not relate to crime or accused. This section is very much clear that any person can be ordered to appear before the Court, which means that the Court may call any person, which also includes the accused/witnesses or otherwise. As such, section 91, Cr.P.C. Is not at all applicable in the present case of the petitioners. Learned counsel for the complainant had relied upon the cases reported as Noor Nabi and 3 others v. The State 2005 PCr.LJ 505, and Zia ur Rehman Sajid v.
Muhammad Aslam and another 2005 PCr.LJ 1706.
10. I have heard the learned counsel for the parties at length and gone through the accord.
11. First of all I would like to discuss the point raised by the learned counsel for the petitioners that the petitioners have already been granted bail in the complaint case, therefore, on the same facts and circumstances they should be enlarged on bail in Challan case as a matter of right applying section 91, Cr.P.C. For ready reference section 91, Cr.P.C. Is reproduced:-- 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 the appearance in such Court.
12. Section 91, Cr.P.C. Is general in nature and it is applicable to a person whose appearance is required, meaning thereby it is applicable not only to accused persons but it is also applicable to the witnesses. In Zia-ur-Rehman v. Muhammad Aslam and another (2005 PCr.LJ 1706) it has been held by this Court that section 91, Cr.P.C. Deals with only to procure the attendance of a person before the Court and after his appearance before the Court the matter of his admission to bail or not rests in the hands of the Court and that impression about automatic admission of an accused person to bail in a private complaint is erroneous. It is also held therein that when an accused has put in appearance before the learned trial Court, provisions of sections 496 and 497, Cr.P.C. Have not been rendered ineffective and the learned trial Court would act with lawful authority in assuming that the accused is entitled to automatic admission to bail and there is no powers vesting in the learned trial Court to release the accused after taking him into custody without passing an order in terms of section 497, Cr.P.C.
13. Similarly section 204, Cr.P.C. Is also necessary to reproduce, which is as under:-- Issue of process.--(1) If in the opinion of a (Court) taking cognizance of an offence there is sufficient ground for proceeding, 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) think fit, 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.
14. This section directly deals with the accused and essential ingredients to call the accused. If an accused is required to be proceeded then to procure his attendance the Court should issue summons or warrant considering the nature of the case by following Column No,4 of Schedule-2, Cr.P.C., wherein it is mentioned whether attendance of an accused should be procured through summons or warrant, meaning-thereby Court shall determine the nature of process i,e, summons or warrant, which is required to be issued to the accused, but according to my view for determination of nature of warrant Column No,4 is insufficient but it shall be read with Column No,5 to determine the nature of warrant. In Column No,5 nature of offence is mentioned whether it is bailable or non-bailable. It means that if the offence is non-bailable then non-bailable and if the offence is bailable then bailable, warrants shall be issued. This section also deals with the question of issuance of process to an accused when the Court takes cognizance of the offence in a complaint case and it in no way deals with offence cognizable, which is taken on the police report.
15. In the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ. 2359) referred to by the learned counsel for the petitioner it has been held that in response to summons issued by the trial Court in a private complaint accused person appears before trial Court, the Court is required to proceed under section 91, Cr.P.C. And to direct him to execute bonds with or without sureties for his appearance before the Court. It was also held therein that when process is issued to an accused under section 204 Cr.P.C. And the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding, such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.
16.In the case in hand the petitioners were arrested in non-bailable offence i,e, under sections 302/148/149, P.P.C. Section 497, Cr.P.C. Clearly says that such person may be released on bail but he shall not be so released if there appear reasonable ground that he was guilty of offence punishable with death, or imprisonment for life or imprisonment for ten years. Hence, I am of the considered opinion that bail cannot be granted to an accused in Challan case as a matter of right merely on the ground that he has been admitted to bail in a private complaint regarding the same occurrence, because section 497, Cr.P.C. Would be applicable for decision of the bail petition on merits available to the accused in the Challan case.
17. The crux of the whole discussion is that in the instant case neither section 91, Cr.P.C. Nor section 204, Cr.P.C. Is applicable as the accused have been challaned by the police on the basis of F.I.R.
Registered against them and they are presently arrested in that case. Thus, the petitioners are not entitled to bail as a matter of right under section 91, Cr.P.C., as no process under section 204, Cr.P.C.
Is issued against them in the Challan case. As far as the grant of bail to the petitioners in complaint case is concerned, the same was allowed merely on technical grounds without discussing the facts and merits of the instant case. Consequently, this bail petition would be decided under section 497, Cr.P.C., which is directly applicable in this case.
18. From the perusal of F.I.R. It reveals that civil litigation is pending between the parties regarding a house in which the alleged occurrence has taken place. Admittedly, the complainant of this case nominated 23 accused in the F.I.R. And all the male members were shown armed with fire-arms while female accused nominated in the F.I.R. Were shown to be armed with Dandas. It is also an admitted fact that the deceased had sustained only one injury of fire-arm, which is specifically attributed to co-accused Asghar. Furthermore the petitioners did not cause any injury to the deceased. Only one injury is attributed to Zahid Yousaf-petitioner, caused to one Muzammil P.W.
Which was observed just an abrasion with blunt weapon. It is also yet to be determined whether Mustafa-petitioner caught hold of the deceased at the time when the alleged fire was caused.
Prima face when a deadly weapon is being used no person would take risk of catching hold of the person intended to be victimized; as there can be possibility of this accused to become wounded.
It has also been noticed that number of nominated accused have been declared innocent by the police, as they were not found present at the scene of occurrence. It is also an admitted fact that five male members from the complainant side along with other female members were shown to be present in the house but no one had sustained injury at the hands of anyone of the accused.
This fact also cannot be ignored at this stage that when 23 accused entered into the house, armed with fire-arms/Dandas, in order to dispossess the complainant party, they did not succeed to dispossess the complainant party, who were lesser in number than the accused party, especially when the complainant party was empty handed and no resistance was made by them.
19. In view of the above discussion, case of the petitioners is one of further inquiry, which definitely attracts the provisions of subsection (2) of section 497, Cr.P.C. Resultantly, both these petitions are accepted and the petitioners are admitted to bail, subject to furnishing bail bonds in the sum of Rupees Two Lacs (Rs,2,00,000) each, with two sureties, each in the like amount, to the satisfaction of the trial Court.
20. Before parting with this matter, I would like to clarify that the above noted observations are only tentative in nature, and would not cause prejudice to either party. Needless to say that learned trial Court would decide the main case on its own merits.