' IJAZ AHMAD CHAUDHRY, C J.--By virtue of this revision petition, the petitioner has called in question the vires of order dated 10-12-2009, passed by learned Additional Sessions Judge, Bhalwal, whereby he summoned respondents Nos.2 to 9 in a complaint filed by the petitioner against them under sections 302, 324, 148 & 149, P. P. C .
2. Shorn of unnecessary details, the facts, forming background of the instant petition, are that the petitioner lodged F.I.R. No,367, dated 2-6-2009, at Police Station Kot Momin, District Sargodha, regarding commission of offences under sections 302, 324, 148 & 149, P.P.C. With the precise allegation that respondents Nos.2 to 9, along with two unknown persons committed murder of Shams ul Abbas, brother of the complainant, whereas Allah Dad was critically injured. On completion of the investigation, the police submitted report under section 173, Cr.P.C. Before the concerned Illaqa Magistrate, who having come to know that the offence was triable by the Court of Session, forwarded the same to the learned District and Sessions Judge, Sargodha, who further entrusted the same to Mr. Jahandar Khan Banth, learned Additional Sessions Judge, Bhalwal, District Sargodha. Being dissatisfied with the investigation conducted by the police, the petitioner instituted Private Complaint qua the same occurrence, on 12-10-2009. After recording cursory statements of the complainant, injured PW as well as that of Azhar Hayat and Mian Faiz, eyewitnesses, and going through the contents of F.I.R, Postmortem Report, Medicolegal Certificate and Site Plan of the occurrence produced by the complainant, the learned trial court summoned the accused persons, through bailable warrants in the sum of Rs,50,000/- each, to face trial in the said private complaint. Aggrieved by the summoning of accused through bailable warrants, the petitioner has filed the instant petition.
3. Learned counsel for the petitioner contends that the impugned order is against law and facts; that the learned trial court erred in law while releasing the accused upon their furnishing surety without granting baili. That the learned trial court passed the impugned order in an arbitrary and fanciful manner; that the impugned order is not sustainable being violative of the provisions contained in section 91 of Cr.P.C; that it is established law that in cases punishable with death or imprisonment for life, the accused summoned cannot be released on mere submission of bail bonds and that even otherwise the impugned order is not sustainable. In addition to his oral submissions, learned counsel has also relied upon the cases reported as Luqman Ali v. Hazroo and another (2010 SCM R 611) and Noor Nabi and 3 others v. The State (2005 PCr.LJ 505).
4. Conversely, learned counsel appearing on behalf of respondents Nos.2 to 9, while defending the impugned order, argues that the impugned order has, been passed totally in line with the law on the subject, therefore, it is not open for any exception by this court in its revisional jurisdiction; that respondent No,9 was already granted bail by a court of competent jurisdiction, therefore, he was not required to file bail petition for his release; that the learned trial court was competent to direct the accused persons, summoned in the private complaint, to submit surety bonds for their presence during the proceedings in the said complaint; that it is not mandatory for any court to ask the accused person, who has been summoned in a private complaint, to file bail petition for his release and that in case the impugned order is set aside, the respondents would suffer an irreparable loss and incalculable injury as they are already facing the agony of the case since the registration of F.I. R in the month of June, 2009. In support of his contentions, learned counsel has relied upon the cases reported as ldrees Ahmad and others v. Zafar Ali and another (2010 SCM R 64), Sher Zaman v. Muhammad Ishaq and others (PLD 1985 SC 144), Riaz Ahmad v. Federation of Pakistan and 6 others (2002 YLR 1658) and Mehdi Khan v. Bashir Ahmad and 2 others (2002 YLR 2566).
5. On the other hand, the learned Additional Prosecutor General has supported the version of the petitioner and argued that the impugned order, being contrary to law on the subject, be set aside.
6 I have heard learned counsel for the parties and have also gone through the documents appended with this petition, in addition to the case law cited by learned counsel for the parties at the bar, in support of their respective pleas. During the course of hearing, I have noted that the question involved in this petition is that whether a court is competent to release the accused summoned in a private complaint upon his furnishing bail bonds or they are required to file independent bail petitions for their release. To resolve the controversy, perusal of sections 91 and 204 of Cr.P.C. Would be imperative, which for convenience of reference are reproduced herein below: - "91. 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 summon 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."
"204. Issue of process.--(I) 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 instant, it shall issue its 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 no jurisdiction itself) some other court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provision of section 90.
(3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint."
' A perusal of the aforementioned provisions makes it crystal clear that a court can call a person through summons or through warrants. The afore-quoted sections deal with the procedure regarding procurement, of attendance of an accused. Once an accused appears before the court pursuant to the process issued to him, the purpose of afore-mentioned sections comes to an end and then the court is to determine whether the offence is bailable op non-bailable. If according to the court, the offence is bailable, it will release the accused upon submission of bail bonds. In case, if the offence is non-bailable, the court shall either release them on bail upon an application or send them to the judicial lock up. According to the dictum laid down by the Hon'ble Supreme Court of Pakistan, in the case of Luqman Ali, supra, while dealing with such question the .Hon'ble Supreme Court of Pakistan inter alia held as under: "In such a situation when the accused appears in pursuance of process under section 204, Cr.P.C.
Either through summons or warrants or bailable warrants or on his own and if the offence is non- bailable then the provisions of section 497, Cr.P.C. Would be attracted and accused could only be released after moving such application and grant of the same. If no such application is moved or no bail is granted by any competent Court either under section 497 or 498, Cr.P.C., as the case may be, then the accused is required to be remanded to judicial custody till the time a proper order is passed either by the trial Court or by the superior Court.
' We have examined the order of the learned Additional Sessions Judge and find that the same is well- reasoned, based upon correct interpretation of relevant provisions of law and relying upon the case of Noor Nabi (supra). We have also examined the said judgment and found that the learned High Court examined in depth all the required provisions of law and interpreted the same in its true perspective. We have examined the impugned order of the learned High Court but are unable to persuade ourselves to agree with the finding arrived at by the learned High Court particularly releasing the accused without the grant of bail. Such release of the accused was unwarranted, illegal and against the provisions of sections 497 and 498, Cr.P.C., therefore, the said order cannot be sustained. "
As per the afore-referred judgment of the Hon'ble Supreme Court of Pakistan, if a person appears before the court pursuant to process under section 204, Cr.P.C. In a non-bailable offence, the court cannot release him merely on filing of surety bonds rather he can be released after giving bail.
' As far as the case law cited by learned counsel appearing on behalf of respondents Nos.2 to 9 is concerned, it is observed, with great sorrow, that not a single case out of those cited by learned counsel for the respondents has any nexus either with the facts of the instant case, or the proposition of law involved therein rather majority of them relate to the civil cases. The said approach shows the lack of proper coaching which cannot be approved of at any cost rather the same be also deprecated so that the decay in the legal system be put to an end.
Insofar as the instant case is concerned, the order passed by the learned trial court depicts that respondents Nos.2 to 9 were released merely pursuant to submission of bonds, thus, the same being violative of case-law laid down in the afore-quoted case cannot be. Sustained.
Consequently, this revision petition is accepted and the impugned order dated 10-12-2009 passed by learned Additional Sessions Judge Bhalwal, District Sargodha, is set aside and the respondents Nos.2 to 9 are directed to file bail petitions within 10 days before the learned trial court which shall decide the same on merits without being influenced by any observation made in this judgment.