' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---Petitioners seek pre-arrest bail in Case F.I.R.
No,615/06 dated 15-8-2006 registered under sections 324,452,148,149, P.P.C. At Police Station Chunian District Kasur.
2. The facts of the prosecution case are that on 14-8-2006, at about 8-00 a.m., Mukhtar Ahmad, Arif, Mustafa alias Papi, Muhammad Aslam alias Baji, Bashir, Shaukat Ali alias. Shoki, Mustafa, Muhammad Ashiq all armed with deadly weapons along with four unknown persons who were also armed with lethal weapons, entered into the house of complainant after breaking the door of the house of the complainant and Mustafa alias Papi accused made a fire shot from his pump action which hit Rasheed Ahmad on his thigh. Bashir Ahmad co-accused gave hatchet blow on his head.
Muhammad Aslam alias Baji fired a shot from his repeater which hit him on his shin.
3. Petitioners, namely, Mustafa alias Papi and Muhammad Aslam alias Baji were declared innocent in the investigation. They were placed in Column. No,2 of the challan on 27-10-2006. Petitioners were summoned by the trial Court for their appearance. Petitioners application for permission to submit bail bonds was accepted whereupon they submitted bail bonds in the sum of Rs,50,000 vide order dated 5-11-2007, same were accepted. Charge was framed on 20-4-2007 and case was adjourned on number of dates for recording prosecution evidence but no witness was produced till 31-1-2009. On 20-10-2008 supplementary challan qua Mukhtar Ahmad accused was filed in the Court and again on 5-1-2009 another supplementary challan was sent to the Court on 5-1-2009 wherein petitioners' names were placed in Column No,3 instead of column No,2, after lapse of about 14 months of submission of bail bonds by the petitioners and after 19 months from framing of charge.
4. Apprehending the arrest petitioners applied for bail before arrest which was rejected by the learned Additional Sessions Judge, Chunain on 2-1-2009.
5. Learned counsel for the petitioners states that petitioners submitted their bail bonds on 5-11- 2007 on the order of the trial Court and charge was framed on 20-4-2007. After commencement of trial placing the name of the petitioners in column No,3 is nothing but a mala fide act of the police.
He states that Additional Sessions Judge wrongly refused to grant bail before arrest to the petitioners notwithstanding the fact that after exercise of power under section 91, Cr.P.C. By the trial Court, petitioners could not be arrested and their bail bonds are valid for all intent and purposes under the law. After submission of the bail bonds, the petitioners were regularly attending the Court and learned Additional Sessions Judge failed to consider the impact/effect of section 91, Cr.P.C.
6. Learned Assistant Prosecutor-General, opposed the bail application on the ground that after placing the names of the petitioners in column No,3, they were found guilty and they were not entitled for bail before arrest as there is no mala fide on part of complainant or police.
7. Heard. Record perused.
8. It will be appropriate that in order to understand effect of section 91, Cr.P.C. Be examined. Section 91, Cr.P.C. Reads as under:-- "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."
9. Learned Additional Sessions Judge has not considered the effect of provisions of section 91, Cr.P.C. The provisions of section 91, Cr.P.C. Are general in nature which are meant to ensure presence of any person who might be accused or witness for whose appearance or arrest, a Court can issue summons or warrant. In the instant case trial Court rightly accepted the bail bonds of the petitioners. After placing the names of the petitioners in column No,3, there was no need for asking further bail. Order of trial Court is consistent with the provisions of section 91, Cr.P.C. Which does not mention that it is only applicable in cases initiated on the private complaint and not applicable in the cases instituted on an F.I.R. Reliance is placed on the judgment reported as Muhammad Ijaz v.
Nadeem (PLD 2006 Lahore 270) in which my brother (Syed Shabbar Raza Rizvi, J) has observed that purpose of section 91, Cr.P.C. Is to ensure or demand presence of such person who is directed by the Court to execute the bonds. These provisions are applicable to a person who is present in Court and is free. If any person is under arrest and is in custody then these provisions will not be applicable. Reliance is placed on Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359) and Noor Nabi and 3 others v. The State (2005 PCr.LJ 505).
10. Although conducting the investigation is domain of the investigation agency/police but successive or further investigations can not be appreciated, especially when the challan was in the Court which after framing the charge had taken cognizance of the matter. Such exercise of filing supplementary challan without permission of the trial Court is unsustainable in law as held in Muhammad Naseer Cheema v. Mazhar Javed (PLD' 2007 SC 31) and Mirza Jahangeer Baig D.I.-G. Of Police, Gujranwala Range and 7 others (2007 M LD 579).
11. Investigation could only be as per procedure under Article 18(6) of Police Order, 2002. Provisions of Article 18(6) control the investigation of the case and provide procedure for change of first and second investigation. Under Article 18(6) of Police Order 2002 only limited number of investigations (i.e, only two).Can take place. If new investigation is not specifically directed by the Board. Such investigation cannot be sustained. Order of transfer of investigation without assigning any reason and without recommendation of the Board is clear violation of provisions of Article 18 clauses (4)
(6) of Police Order, 2002. Transfer of investigation from one officer to another may not effect of vitiating trial but it might disrupt and jeopardize entrenched principle of law, which reflect adversely to the efficiency and credibility of the officer concerned as held in Muhammad Ali v. The State 2008 PCr.LJ 87.
12. No injury is attributed to petitioner No,2. Mala fide of the prosecution is evident from the fact that they submitted supplementary challan qua petitioners after lapse of about 22 months from framing of charge. Record shows that charge was framed on 20-4-2007 and the case is lingering on for recording the prosecution evidence for the last about two years.
13. Proof of mala fide or ulterior iE motive is essential for the grant of bail before arrest. Be that as it may, it will be proper to examine as to whether for grant of bail before arrest to the petitioners, principle laid down by the Apex court in case titled Sadiq Ali v. The State PLD 1966 SC 589 is attracted or not. It has been held in ibid case "exercise of this power should, however be confined to cases in which not only a good, prima facie, ground is made out for grant of bail in respect of an offence alleged but also it should be shown that if the petitioners were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to E the case, but from some ulterior motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer all irreparable harm". This principle was reiterated in the case of Meeran Bux v. The State PLD 1989 SC 347. In this case bail before arrest granted to an accused by the Sessions Judge was cancelled by the High Court in suo motu revisional jurisdiction on the premises that pre-requisite for bail before arrest i.e, ulterior motive was not satisfactory proved but the apex Court restored the order of Sessions Judge, taking into consideration that the accused remained on bail for a period of more than one year before cancellation of his bail. Reference can also be made to the case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82, Jamal-ud-Din v. The State 1985 SCM R 1949, Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 and Syed Muhammad Firdous and another v. The State 2005 SCM R 784:
14. In this view of the matter, ad-interim pre-arrest bail already granted to the petitioners by this Court vide order dated 3-3-2009 is hereby confirmed subject F to their furnishing fresh bail bonds in the sum of Rs,1,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court.
15. Trial is lingering on since two years from framing of charge, no witness has been examined which is matter of great concern, in this view of the matter, learned trial Court is directed to conclude the trial expeditiously within a period of four months from the receipt of this order.
16. Before parting with this order, it is clarified that observations made herein-above are tentative in nature and the trial Court should proceed with the case independently without being influenced of this order.