' MUHAMMAD KHALID ALVI, J.---This single order disposes of. Criminal Miscellaneous No,1829-B-2008 titled "Shaukat Rasool v. The State" And Criminal Miscellaneous No,2865-8-2008 titled "Noor Muhammad v. The State" as both these applications arise out of the same F.I.R.
2. Shaukat Rasool and Noor Muhammad petitioners seek their bail after arrest in case F.I.R. No, 103/2007 dated 23-3-2007 under sections 302, 109, 148, and 149 P.P.C. At Police Station Sadar Jalalpur Pirwala, District Multan. Precisely allegation against the petitioners is that they caused injuries with Sotas on the person of Haq Nawaz, deceased son of the complainant, and Muhammad Iqbal P.W.
3. It is submitted that deceased Haq Nawaz and Muhammad Iqbal injured had suffered injuries at the hands of the police while they were being interrogated in the case F.I.R. No,59/2007 and as a result of torture by three police officials Haq Nawaz succumbed to the injuries. It is further added that nature of injuries as described in the post-mortem report does not conform with the allegations in the F.I.R. i,e, petitioners were alleged to have caused injuries with sotas on the person of the deceased which is not supported by medical evidence. That petitioners are not alleged to have caused any specific injury on the person of deceased or the injured. That during police investigation and also in the inquiry report by the Magistrate it has come on record that it was the police who had murdered the deceased while interrogating case F.I.R. No,59/2007. It is also added that Mst. Sughra complainant had also filed a private complaint in which the learned trial Court had directed the petitioners to file bonds under section 91 Cr.P.C, therefore, keeping in view the principle of consistency, petitioners are also entitled to be allowed bail in the State case. It is contended that since the private complaint is to proceed and the State case would remain dormant, therefore, propriety demands that petitioners be admitted to bail in case, which is to remain dormant. In support has relied upon Maqbool Ahmad v. The State and another (1997 PCr.LJ 1074), Muhammad Ejaz v. Nadeem and 3 others (PLD 2006 Lahore 227) and Zahid Yousaf v. The 'state and another (PLD 2008 Lahore 384).
4. On the other hand learned Additional Prosecutor-General assisted by learned counsel for the complainant has opposed these applications. It is submitted that deceased was brutally murdered and the mother who is complainant has repeatedly and consistently taken the stance that it was the petitioners and others who had murdered her son. It is submitted that in order to derail the actual facts a false private complaint has also been got filed through one Liaquat Ali, who is a servant of the petitioners. That petitioners are named in the F.I.R. With a role of causing injuries to the deceased while they were hanging him upside down while tied with ropes.
5. I have considered the arguments advanced on behalf of the parties and examined the record.
6. Chapter VI of the Code of Criminal Procedure deals with process to compel service through summons, bailable or non-bailable warrants, and ensure presence of persons connected with the inquiry or trial. Person may be a witness or an accused in such inquiry or trial. This Chapter does not deal with grant or refusal of bail to a person accused of bailable or non-bailable offence.
Section 91 referred by the learned counsel for the petitioners is reproduced as follows:-- "Power to take bond of 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."
This section empowers a Court to require "any person" to execute a bond with or without surety for his appearance in such Court. Such person may or may not be an accused in the inquiry or trial before such Court he is merely being bound down by such bond to appear before the Court as and when required.
7. So far as grant of bail is concerned, it is dealt with by Chapter XXXIX of the Code of Criminal Procedure which deals with various categories of bails. Section 496 is reproduced as follows:- "In what cases bail is to be taken.--When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in-charge of a Police Station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail. Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: ' Provided, further that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4) or section 117, subsection (3)."
' This section deals with accused of non-bailable offences arrested or detained without warrant or appear or brought before the Court, such person "shall" be released on bail without any further formality provided the accused is ready to furnish bail. Meaning thereby that in such eventuality there is no discretion lying with the Court to refuse of grant bail.
8. Section 497 deals accused of non-bailable offence, which is reproduced as follows:-- "When bail may be taken in case 'of non-bailable offence.--(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or [imprisonment] for life or imprisonment for ten years]:"
' Subsection (1) of section 497 Cr.P.C. Divides accused persons of non-bailable offences in two categories; first category is of those accused persons who have allegedly committed offences which are punishable with less than 10 years and are non-bailable. This category of accused persons may be ordinarily admitted to bail keeping in view the facts and circumstances of the case. However, bail may be refused in exceptional circumstances, keeping in view the nature of offence, previous history of the accused, his conduct, repetition of offence by such accused etc. Etc. Second category is of those accused persons who are guilty of offences punishable with more than 10 years. There is a bar for the grant of bail to such accused persons unless reasonable grounds are available for believing that he is not guilty of such an offence.
9. In any case for the grant or refusal of bail under this provision discretion lies with the Court and has to be exercised judicially by application of mind.
10. Another distinctive feature between sections 91 and 497 Cr.P.C. Is that in section 91 the Court is not required to issue notice to the prosecution while directing "any person" to execute bond. While under section 497 if the Court intends to admit an accused of non-bailable offence to bail a notice to prosecution is mandatory under the last proviso to subsection(1).
11. Sections 498 and 498-A deal with the powers of Sessions Court arid High Court to admit to bail even though he was not yet been arrested or detained in an offence which falls in the category of non-bailable offences.
12. Under section 204 of the Cr.P.C. The Court after recording preliminary evidence is of the opinion that there are sufficient grounds to proceed further would issue process in the nature as provided in the 4th Column of the 2nd Schedule i,e, summons or warrants in the first instance. In response to such process if the accused person appears before the Court he not only may be required by the Court to execute a bond under section 91 Cr.P.C. But it shall also be required that his custody be handed over to a surety under a bail bond in terms of section 496 if the offence is bailable and in terms of section 497 if the offence is non-bailable. If the offence is non-bailable the accused is necessarily required to be taken into custody by the Court and notice as required under the last proviso to subsection (1) of section 497 Cr.P.C. Will be issued to the prosecution for the purpose of grant or refusal of bail to such an accused.
13. Nutshell of the above discussion is that if a person accused of non-bailable offence is summoned by a Court under section 204 is not only required to execute bond under section 91 for his appearance but it is also required that either he be taken into custody by the Court and if he is to be' released on bail then before such release a notice to prosecution is to be issued and the grant or refusal of bail is then to be examined on its own merits. It is thus evident that a person accused of non-bailable offence should either be in the custody of the Court or in the custody of a surety in terms of section 496 or 497. Execution of bond under section 91 does not qualify the above test.
14. For what has been stated above, contention of the learned counsel for the petitioners that furnishing of bond by the petitioners under section 91, Cr.P.C. Is sufficient for their release on bail because conditions necessary to be examined for admitting a person accused of non-bailable offence are not considered while requiring bond under section 91.
15. Coming to the merits of case, conclusions drawn on one hand by the initial investigating agency that it was the police officials who had committed murder and on the other hand investigation result by the Range Crime that petitioners are the actual culprits, are divergent views of the investigating agencies. So far as report by the learned Judicial Magistrate is concerned, his authority under section 176 Cr.P.C. Was to ascertain the cause of death and not the actual culprits, therefore, the same is also of little value at this stage. Petitioners are not only named in the F.I.R. But have also played a specific role and this was witnessed by the mother of deceased herself besides other witnesses. Moreover, nature of the offence is also heinous and brutal. For what has been stated above, I find no merits in these applications, which are accordingly dismissed.