' ASIF SAEED KHAN KHOSA, J.-- ' Criminal Miscellaneous Application No. 293-L of 2014 ' This miscellaneous application is allowed in the terms prayed for therein. Disposed of.
' Criminal Petition No. 849-L of 2015
2. Through this petition Malik Javaid Iqbal petitioner, a brother of Hafiz Ikram deceased, has sought leave to appeal against the order dated 24-7-2014 passed by Syed Muhammad Kazim Raza Shamsi, J. Of the Lahore High Court, Lahore in Criminal Miscellaneous No.7585-B of 2014 whereby respondent No. 2 namely Shabbir Ahmed had been admitted to post-arrest bail in case FIR No. 829 registered at Police Station Harbanspura, Lahore on 7-10-2013 in respect of offences under sections 324, 148 and 149, P.P.C. During the investigation section 302, P.P.C. Had been added to the FIR.
3. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance.
4. We note that for admitting respondent No. 2 to post-arrest bail in the above mentioned criminal case the learned Judge-in-Chamber of the Lahore High Court, Lahore had observed as follows:-- "After having heard the learned counsel for the parties and perusing the record it is found that regarding the same occurrence a private criminal complaint has also been lodged in the matter which is in progress and petitioner and others accused are facing the trial in that case. The State case in the meanwhile has been kept without conducting any progress in the same. As has been expressed by this Court in various cases, Criminal Miscellaneous No. 12991-B of 2012 (Arshad alias Tedi v. The State and another), Criminal Miscellaneous No. 14170-B of 2013 (Shabbir Ali v. The State etc.) and Criminal Miscellaneous No. 5842-B of 2013 (Muhammad Saleem Akhtar v. The State and another), that when a trial is commenced in private complaint case then the incarceration of a person in the State case becomes the detention without trial and in those cases, the applicants have been admitted to bail on this score. Same is the position in the case in hand where the petitioner has not been detained in the private complaint case that he is facing incarceration in the State case in which no progress is being made in the trial seized of the matter. In this manner, the incarceration of the petitioner in the jail is without trial which is against the principle of safe administration of justice."
It is quite noticeable that respondent No. 2 had been admitted to post-arrest bail by the learned Judge-in-Chamber only on the basis of one ground and that was that respondent No. 2 had been arrested in connection with a Challan case but present proceedings were underway before the learned trial Court in connection with a private complaint instituted in respect of the selfsame incident and, thus, continued custody of respondent No. 2 in connection with the Challan case was "against the principle of safe administration of justice". We have gone through the provisions of section 497, Cr.P.C. In their entirety and have found that the ground weighing with the learned Judge-in-Chamber for admitting respondent No. 2 to post-arrest bail does not find support from any provision of the said section. Post-arrest bail in cases attracting the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Can be granted to an accused person in a Challan case only within the parameters of the provisions of section 497, Cr.P.C. Which are reproduced below:-- "497. 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: ' Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released: ' Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail-
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded: ' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
A perusal of the provisions of section 497, Cr.P.C. Clearly shows that in a case attracting the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. An accused person can be admitted to post-arrest bail in the following cases:-
(i) cases attracting the first proviso to subsection (1) of section 497, Cr.P.C. Wherein the accused person is under the age of sixteen years or is a woman or is a sick or infirm person;
(ii) cases attracting the statutory ground of delay in conclusion of the accused person's trial;
(iii) cases attracting subsection (2) of section 497, Cr.P.C. Wherein sufficient grounds for further inquiry into the guilt of an accused person exist; and
(iv) cases wherein after conclusion of the trial and before delivery of the final judgment the Court is of the opinion that reasonable grounds exist for believing that the accused person is not guilty of any offence.
5 We have failed to find any provision in section 497, Cr.P.C. Which authorizes a Court to admit an accused person to bail if such accused person has been arrested in connection with a Challan case and the proceedings of the Challan case are kept pending while the trial is being conducted in a connected case arising out of a private complaint. It is, thus, obvious that the solitary ground weighing with the learned Judge-in-Chamber of the Lahore High Court, Lahore for admitting respondent No.2 to post-arrest bail in the Challan case did not have the requisite statutory sanction. A similar view has already been expressed by this Court regarding the selfsame issue in the case of Ghulam Qammber Shah v. Mukhtiar Hussain and others (PLD 2015 SC 66) and also in the case of Mst. Jewan Mai v. The State, etc. (Criminal Petition No. 811-L of 2014 decided on 17-2- 2015)=PLD 2015 SC 242. The learned counsel for the petitioner has drawn our attention to the case of Muhammad Hanif and 6 others v. The State (2001 PCr.LJ 1470) decided by a learned Division Bench of the Lahore High Court, Lahore wherein it had clearly been held that pendency of a private complaint or trial being conducted in a private complaint is not a valid ground for admission of an accused person to bail if he had been arrested in connection with the connected Challan case. It goes without saying that the learned Judge-in-Chamber of the Lahore High Court, Lahore passing the impugned order in the present case was obliged to follow the law declared by a learned Division Bench of the same Court earlier on.
6. The learned counsel for respondent No.2 has submitted that the said respondent had approached the Lahore High Court, Lahore seeking his post-arrest bail on the merits of his case but in the impugned order the learned Judge-in-Chamber of the said Court had completely failed to advert to any ground vis-a-vis the merits of the respondent's case and if the ground prevailing with the learned Judge-in-Chamber for admitting respondent No.2 to post-arrest bail does not find favour with this Court then respondent No.2 ought not to suffer for an act or omission of the Lahore High Court, Lahore. It has been maintained by the learned counsel for respondent No.2 that if the present petition is to be accepted by this Court and the impugned order is to be set aside then it shall serve the interests of justice if the matter is remanded to the Lahore High Court, Lahore for a fresh decision of the respondent's application for post-arrest bail on the merits of the case.
The learned counsel for the petitioner as well as the learned Prosecutor-General, Punjab appearing for the State have stated that the above mentioned submission made by the learned counsel for respondent No. 2 has merit and acceptance of that submission would advance the ends of justice.
7. For what has been discussed above we find that the solitary ground prevailing with the Lahore High Court, Lahore for admitting respondent No.2 to post-arrest bail in the Challan case does not commend itself for approval as the same runs contrary to the relevant statutory provisions as well as the law already declared by this Court on the subject. This petition is, therefore, converted into an appeal and the same is allowed and consequently the impugned order dated 24-7-2014 passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 7585-B of 2014 is set aside. We direct that Criminal Miscellaneous No. 7585-B of 2014 shall be treated by the Lahore High Court, Lahore as a pending petition and the same shall be re-decided by the said Court on the merits of the case of respondent No.2. Let respondent No.2 appear before the Lahore High Court, Lahore on 25-2-2015 and till then respondent No. 2 shall be deemed to be on ad interim post-arrest bail in the relevant criminal case and thereafter it shall be for the Lahore High Court, Lahore to regulate the matter of the respondent's custody.