This order will dispose of the instant writ petition as well as Crl. Revision No. 56/2010 (Syed Iqbal Hussain Shah Bukhari versus the State and four others) as common question of law and fact is involved therein.
2. According to the story as narrated in the FIR No. 439/2009, registered at Police Station, New Multan on 8.5.2009 brother-in-law of the petitioner/complainant, namely Syed Javed Bukhari son of Yousaf Bukhari had been killed by Umar Draz, Muzammal and Rizwan sons of Qamar Hayat. The motive for the occurrence as stated in the FIR is that the said accused persons owed Rs. 72,000/- to the deceased, who had raised demand for the payment thereof number of occasions and in the past there had been altercation between the parties. It is maintained that on 8.5.2009 at 7,30 a.m.
The said accused persons came to the house of the deceased and asked him to accompany them to their commission shop. After some time the petitioner apprehended danger as admittedly there had ben dispute regarding the said money between the parties. The petitioner followed his brother-in-law when he reached near Jalandar Hotel, Chowk Kumharan he found that the accused persons had caught hold of the deceased and were beating him. On seeing the complainant the said accused persons had thrown the deceased to a tractor, passing nearby which ran over him.
The deceased was seriously injured. He was immediately taken to the hospital where he succumbed to injures. The case of the petitioner is that since registration of the case, local police was not investigating the case properly and made an attempt to show that the deceased had been killed in an accident whereas the deceased had been deliberately thrown to a fast moving tractor, with intent to kill him and thus he was killed.
3. W.P. No. 1397/2010 was directed against order dated 16.1.2010 passed by learned Magistrate Section-30, Multan whereby the learned Judicial Magistrate disagreed with the report submitted by the police under section 173, Cr.P.C., wherein the petitioner was challaned under section 320, PPC.
The learned Judicial Magistrate while disagreeing with the report, sent the Challan to the Sessions Judge, Multan vide order dated 16.1.2010 for trial under section 302, PPC. The learned Sessions Judge entrusted the case to the learned Additional Sessions Judge vide order dated 25.1.2010.
4. It is contended that the learned Additional Sessions Judge, Multan without going through the record has summoned the petitioner vide order dated 26.1.2010. It is maintained that both the orders dated 25.1.2009 and 26.1.2010 are passed without lawful authority. It is maintained that during investigation it was found that the occurrence was a result of an accident and the investigating officer has rightly submitted report under section 320 PPC before the learned Judicial Magistrate, who illegally forwarded the reference to the learned Sessions Judge for trial under section 302 PPC. It is also maintained that there is no evidence against the petitioner for having committed the offence under section 302, PPC, therefore, the order is illegal on the face of it. It is further maintained that the order dated 25.1.2010 and 26.1.2010 having passed without lawful authority merits to be set aside.
5. On the other hand, learned counsel appearing on behalf of respondents No. 4 to 7 has maintained that the learned Judicial Magistrate had rightly sent the Challan to the Sessions Court for trial under section 302, PPC. It was further maintained that even if after recording the evidence the learned trial Court comes to the conclusion that the petitioner has committed an offence under section 320 PPC he can be convicted thereunder whereas if the trial is conducted by learned Judicial Magistrate and he comes to the conclusion that the offence committed by the accused falls under section 302, PPC then he would have no jurisdiction to try the case. Therefore, under the law there is no illegality in the impugned orders. Reliance has been placed on Dost Muhammad v.
The State and another (2005 MLD 111 (Lahore) wherein it was held that when charge was framed for a major offence, but a minor offence was proved, accused could be convicted for minor offence, but when accused is charged for a minor offence he could not be convicted for a major offence.
6. Criminal Revision No. 56/2010 has been filed by respondent No. 4 in the above said writ petition and it is maintained that once a Challan was sent up for trial to the learned Sessions Judge then it was imperative for the trial Court to arrest the petitioners as offence under section 302 PPC was not bailable and earlier the bonds furnished by a respondents were for bailable offence. It is contended that the learned trial Court has treated the reference as complaint case instead of a Challan case and has illegally admitted the respondents on bail automatically, in accordance with section 91 Cr.P.C. According to the learned counsel for the revision petitioner the procedure adopted by the learned Additional Sessions Judge was violative, of the dictum laid down by the Full Court in the case of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and maintained that under the law the respondents should have been arrested.
7. From the contents of the FIR it appears that the order passed by the learned Judicial Magistrate does not suffer from any illegality. The learned Judicial Magistrate was free to apply his judicious mind and when he reached to the conclusion that the investigation had not been carried out fairly, he had every right to send a reference to the learned Sessions Judge for trial under section 302 PPC. The report of the learned Judicial Magistrate was readily acceptable to the learned Sessions Judge, who immediately entrusted the case to the learned Additional Sessions Judge for trial.
Therefore, as far as impugned order in the above titled writ petition is concerned it does not suffer from any illegality or infirmity, therefore, the same is upheld.
8. As far as question of arrest of the accused persons is concerned, they-had furnished sureties in a case registered against them under section 320 PPC. They had joined the investigation and once the reference was sent to the learned Sessions Judge they were summoned and they appeared before the Court and surrender themselves before the Court. In absence of any lawful reason for cancellation of their surety bonds it appears to be harsh to effect their arrest by the Additional Sessions Judge for trial under section 302 PPC.
9. On the other hand, learned counsel for the revision petitioner has relied on PLD 2009 Lahore 590 wherein it was held that if a person accused of non-bailable offence is summoned by the Court under section 204, Cr.P.C., he should either be in the custody of the Court or under custody of the surety under sections 496 anti 497, Cr.P.C. It was also held that execution of bond under section 91, Cr.P.C., was not sufficient in such cases. In 2008 YLR 16 it was held that the provisions of section 91 Cr.P.C. Were to be read in conjunction with the provisions of sections 496 and 497 Cr.P.C. And despite the fact that the petitioners had put in their appearance before the learned trial Court. The provisions of sections 496 and 497 Cr.P.C. Had not been rendered ineffective and as such, the petitioners were not entitled to automatic admission to bail.
10. The said proposition came under consideration of Full Court in PLD 2005 Lahore 470 relying on Noor Nabi and three others v. The State (2005 P.Cr.L.J. 505) the Full Bench approved the findings of the learned Judge in Chamber in Noor Nabi's case, that section 91 Cr.P.C. Deals only to procure attendance of a person before the Court and after his availability before the Court the matter of admission to bail or not rests in the hands of the Court and that the impression about the automatic admission of an accused person to bail in a case like a private complaint is erroneous.
While applying dictum laid down in Khizar Hayat's case the contention of the learned .Counsel for the petitioner is that the learned Additional Sessions Judge had treated the case in hand as a complaint case and that it was imperative for him to arrest the accused persons. The inference appears to be ill founded. Similarly, the dictum laid down in 2008 YLR 16 and PLD 2009 Lahore 590 also appears to be erroneous in as much as that the Full Court had unequivocally held that it was a matter of discretion with the learned trial Court. If the learned trial Court was convinced that the accused persons who had furnished sureties in non-bailable offence were not likely t6 disappear and they continued to. Join the proceedings then there may very well be a case wherein asking them to furnish fresh bail bonds would be an exercise in futility. However, if learned trial Court comes to the conclusion that after addition of non-bailable offence, the accused are likely to abscond then the learned trial Court has the jurisdiction to require the accused persons to file fresh bail bonds or to effect their arrest. However, none of the order shall operate automatically. In this case if the petitioner feels that the respondents are likely to misuse the concession of bail then they are at liberty to move the learned trial Court for cancellation of bail. Similarly, if the respondents in revision petition feel any apprehension of arrest they may also approach the learned trial Court for admission of bail in non-bailable offences. However, the question whether such an accused be arrested or released on bail remains within the discretion of the trial Court.
Therefore, no interference by this Court would be called for unless a gross misuse of discretion is apparent from the face of record. With above observations the revision is also dismissed.