YAR MUHAMMAD, J.---By this single judgment, I propose to dispose of Criminal Miscellaneous No,53/2015 titled Rehmat Naseer v. The State, Criminal Miscellaneous No,55/2015 titled Rehmat Naseer v. The State and Criminal 'Miscellaneous No,59/2015 titled Abdul Ghaffar v. The State as these have arisen from identical orders besides that common questions of law and facts are involved in them.
2. For the purpose of understanding the facts relevant to these petitions, I would like to give a concise background of the petitions so that a complete picture as to how these petitions cropped up. Petitioner Rehmat Naseer of Cr. Misc. No,53/2015 and Cr.Misc. No,55/2015 was charged for the murder of one Muhammad Naeem and his daughter Mst. Nighat .Who were blamed for having illicit relations and accordingly FIR Nos.21/2014 and 22/2014 respectively were registered against him in Police Station, Guner Farm. The said petitioner/accused accordingly was arrested by the police and brought before the learned Judicial Magistrate Chilas where the complainant party effected compromise with the accused and on the basis of that composition the learned Judicial Magistrate released the petitioner/accused on bail through separate orders dated 8-12-2014.
Similarly, the petitioner of Cr.Misc. No,59/2015 was charged for the murder of his daughter Mst.
Natoki for bearing alleged loose character and accordingly FIR No,46/2014 was registered with Police Station, Chilas. It may be noted that during the course of murder of Mst. Natoki, two other ladies Mst. Nowsherah and Mst. Farhat who were present on the spot also received bullet injuries as they had come forward to rescue Mst. Natoki. Subsequently, Mst. Nowsherah died due to the bullet injury sustained in her body. On 20-6-2014 when the petitioner/accused was brought before the learned Judicial Magistrate, Chilas the LRs of the deceased Mst. Natoki and Nosherah and the injured lady appeared before the learned Judicial Magistrate and recorded their statements contending that they had effected compromise with the accused and basing upon the compromise the learned Judicial Magistrate released the petitioner on bail vide his order dated 20-6-2014. After completion of the investigation and proceedings in all the three cases mentioned above, the police submitted challans of the cases to learned Judicial Magistrate Chilas who after doing the needful initiated the proceedings to the learned Sessions Judge because all the cases were exclusively triable by him. On notice, when petitioner/accused Rehmat Naseer appeared before the learned Sessions Judge to face the trial of both the Criminal cases against him, the learned Judge observed that the petitioner/accused despite being involved in double murder case is appearing before him without hand-cuffs, consequently, learned Judge without serving any notice cancelled the bail facility extended to him by the learned Judicial Magistrate and directed for deposition of the said petitioner/accused in judicial lock-up vide his order dated 22-4-2015, hence two petitions bearing Nos.53/2015 and 55/2015 were filed in this Court under section 497 Cr.P.C. Seeking release of the petitioner on bail. Likewise, when on 22-5-2015 petitioner/accused Abdul Ghaffar appeared before the learned Sessions Judge, Chilas to face the trial of the above criminal case against him, the learned trial Judge observed that the accused despite being involved in a murder case is appearing before him without handcuffs resultantly, he cancelled the bail facility extended to the accused by learned Judicial Magistrate on 20-6-2014 and deposited the accused in judicial lock-up vide his order dated 22-5-2015, hence this application under section 497 Cr.P.C. Was filed in this Court for the release of the petitioner on bail.##TE#
3. I have heard M/S Jehanzeb Khan and Zahoor Ahmed, Advocates for the petitioner together as common question of law and facts are involved in the petitions and Dy. Advocate-General for the State at length.
4. The learned counsel for the petitioners while targeting the orders passed by the learned Sessions Judge, Diamer cancelling the bail of the petitioners, submitted that the learned Sessions Judge was not competent to cancel the bail of the petitioners granted by the learned Judicial Magistrate on basis of compromise and further maintained that the Judicial Magistrate under law is competent to entertain bail matters even in cases exclusively triable by Sessions Judge provided that valid grounds for granting bail are found and contended that compromise is a recognized and most valid ground for granting bail which was provided to learned Judicial Magistrate by the LRs of the deceased persons. They argued that neither the complainant party nor the prosecution had filed any application before the learned trial Court for cancellation of the bail but the learned trial Court cancelled the same. They further contended that if the learned Judicial Magistrate had exercised his jurisdiction wrongly and improperly even then the learned trial Judge was under legal obligation to serve notice upon the accused/petitioner enabling them to defend their liberty before passing the bail cancellation orders which being unheard are liable to be set aside on the sole ground.
5. Malik Sherbaz the learned Dy. Advocate General on the other hand while advancing arguments raised question about the maintainability of the applications under section 497, Cr.P.C. And contended that the learned Sessions Judge has recalled the orders of the learned Judicial Magistrate granting bail to the petitioners by exercising his powers vested in revisional side as such the instant petitions are bad in the eye of law. He contended that the learned Judicial Magistrate cannot release an arrested person on bail basing on any compromise for the reason that compromise can only be filed before the trial Court as the in hand cases are exclusively triable by the Sessions Judge. In their rebuttal arguments the learned counsel for the petitioners while conceding the fact that in the prevailing situation, applications under section 497, Cr.P.C. Were not lying in this matter but submitted that this court has ample power to convert the instant bail applications into proper type and form of proceedings.
6. I have given my thoughtful considerations to the arguments advanced by the respective counsel of the parties and have gone through the relevant law. The learned Sessions Judge through his order dated 22-4-2015 and 22-5-2015 has cancelled the bail facility extended to the petitioners by the learned Judicial Magistrate, although the impugned orders of the learned Judge, are silent as to under which law he passed the orders yet I impliedly hold that the learned trial Judge has passed the order in exercise of his power vested upon him under section 439-A Cr.P.C. But I am of the view that the impugned orders are bad in the eye of law because prior to cancelation of bail orders the learned Sessions Judge did not issue any notice to the petitioner/accused affording them a chance to defend their liberty. Suppose that the orders of the learned Judicial Magistrate were illegal even then the accused had accrued a right which could not be snatched without hearing them. Thus, I hold that the learned trial Judge while passing the impugned orders has acted sentimentally not judiciously. It is expected from Judicial Officers that they carry each kind of proceedings with due patience and care so that a poor litigant would not suffer unnecessarily. It is likely that filing of these petitions in this court would have been avoided if the learned trial court had heard the petitioners before cancelling the bail through the impugned orders. Since the learned Sessions Judge passed the orders without hearing the petitioners as such I am of the considered view that legal sanctity could not be given to these orders particularly when the same are resulting in penal consequences and curbing the right of liberty. When any order passed by a Court of Law without providing opportunity of hearing to the interested person such an order would be held as a clear departure from the rule of natural justice, thus rendering such order to be illegal.
7. The objection raised by the learned Dy. Advocate General about the maintainability of the instant petitions filed under section 497 Cr.P.C., I agree with his view point. The learned Sessions Judge has passed the orders cancelling the bail of the petitioners while exercising his power vested upon him under section 439-A, Cr.P.C. And while doing so the learned trial court closed the doors for the petitioners to seek remedy against the said orders because law provides that without setting aside the order of the learned Sessions Judge, the petitioners are not permitted to file bail matter before the trial court and this Court. The only remedy in the prevailing circumstances remained with the petitioners was to challenge the impugned orders of the Sessions Judge before this court invoking revisional jurisdiction of this court instead of filing application for grant of bail but at the same I am of the considered view that an order passed in exercise of revisional jurisdiction cannot be challenged in revisional side before this Court. Under such circumstances it becomes mandatory for this court to provide a legal way-out to the affected persons so that they could come out from the spot where they are confined due to such orders. Thus, in the attending circumstances the bail application may be converted into an application under section 561-A, Cr.P.C. Law emphasis that justice should be done and on the way of providing justice the type and kind of proceeding should not be hurdled which is curable by converting one type of proceeding into another kind of proceedings provided that the jurisdiction of the court remains intact Therefore, a bail application in a fit case can be converted into revision or into an application under section 561-A Cr.P.C.
Provided that rule of justice so demands in the absence of any express provision.##TE# In these matters the learned Sessions Judge had the authority to cancel the orders of the learned Judicial Magistrate granting bail to the petitioner on the basis of any application filed under section 497(5), Cr.P.C. Before him then fresh application for grant of bail can be filed before this court. It was open to the state that the concerned DPP could file an application under section 497(5), Cr.P.C. For cancellation of bail before the learned Sessions Judge which was not done because state had no objection about the grant of bail to the petitioners by the learned Judicial Magistrate.
8. In the in hand petitions no prayer for setting aside the impugned orders of the learned Sessions Judge by maintaining the order of Judicial Magistrate has been made and in the absence of such prayers whether the petitioner could be remedied efficaciously through these petitions, in this regard I have gone through the case reported in 1998 PCr.LJ 1035 (Karachi) in which a learned Division Bench has observed as under:-##TE# "Court can always mould the relief and grant such relief which might not have asked for, provided court has the jurisdiction to do so."
Thus in view of the above laid principles there is no bar in law for granting any relief to any person which has not been asked for, provided that he deserves to such relief in the opinion of Court.
9. 1 have gone through the orders passed by learned Sessions Judge vide which he recalled the bail facility extended to the petitioner by the learned Judicial Magistrate. The learned Sessions Judge in his identical orders observed as under: "the record shows that the learned Judicial Magistrate 1st Class has released the accused on bail on the basis of compromise. This is a case of honour killing and section 311, P.P.C. Attracts in the case, therefore, question of bail does not arise at this stage. Learned Judicial Magistrate has wrongly exercised his jurisdiction under section 497, Cr.P.C. Hence the to the accused is hereby cancelled."
10. The orders recorded by the learned Sessions Judge are consisting of almost the following three points:- (1). It was a case of honour killing. (2) section 311 PPC is attracting. (3) The learned Judicial Magistrate has wrongly exercised his jurisdiction under section 497 Cr.P.C.
11. No doubt according to the contents of the FIRs the murders have been committed under the pretext of honour and the- relevant law provides no leniency to such accused if the murder is proved was committed under the pretext of honour but at this stage when the trial of .The cases have hardly commenced no presumptions in this regard could be made that the murders were really committed under the pretext of honour until it, is established through evidence produced by the prosecution in support of its case. At bail stage when a valid ground for bail is found in the record normally bail is granted even if the case is not bailable because granting bail is an interim relief which is extended in view of any deficiency if found in the evidence but at the conclusion of trial when the guilt of the accused in proved he could be re-deposited in jail but if he is acquitted of the charge the period he served in the jail by no way is compensated.##TE# The learned Judicial Magistrate after taking cognizance of the case was carrying formal proceedings when the complainant party appeared before him and made a request for recording statements of the respective LRs of the deceased persons and the learned Magistrate accordingly recorded the statements of the LRs and basing on the compromise released the petitioner/accused on bail.
Composition in a criminal case even in non-compoundable offences has always considered a valid ground for bail. Law is made for the benefit of people and for the betterment of the society.
When two opponents are going to resolve their dispute by way of compromise the Courts are expected to extend their co-operation for the parties to resolve the matter so that same be helpful to maintain peace and tranquility in the society.##TE# As observed above when its proved that the Qatl-e-Amd if committed in the name or on the pretext of honour leniency in conviction to the accused is not given as per the Ist proviso of clause (c) of section 302, P.P.C. But it could only be determined after adducing the whole evidence and before recording the evidence one could not safely say that it was an honour killing case. In this regard, I am of the considered view that courts are not bound to follow the recommendation made in the challan of a case by the I.O. Until and unless the recommended points are proved at trial.
12. Lets examine whether section 311, P.P.C. Attracts in the case or otherwise as stated by the learned Sessions Judge in his orders. This section says that where all the walis do not waive or compound the right of Qisas or (if the principle of Fasad-Fil-Arz is attracted) the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term which may extend to 14 years but shall not be less than ten years as Tazir" provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than 10 years. For the purpose of this section Fasad-FilArz shall include the past conduct of the offender, or whether he has any previous conviction or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience or the offence relates to honour crime or if the offender is considered a potential danger to the community or if the offence has been committed in the name or on the pretext of honour. During the course of arguments the learned Dy. Advocate General was not able to convince the court with 'available material on file that these murders caused Fasad-Fil-Arz. Neither the I.O. Has written any single word in the challans of the cases showing that the petitioners were previously convicted and the murders enraged public conscience. In absence of such required evidence the presumption of the learned Sessions Judge that section 311, P.P.C. Does attract in the case was wrong. The learned Sessions Judge could have waited to get the PWs examined and thereafter he could have concluded that the murders were under the pretext of honour killing which also fermented Fasad-Fil-Arz then he was at liberty to invoke the Ist Proviso of clause (c) of section 302 read with section 311, P.P.C.
13. So far the objection raised by learned Sessions Judge in the impugned order that the learned Judicial Magistrate has wrongly exercised his jurisdiction under section 497, Cr.P.C. Is concerned, in this connection I have gone through the case-law reported in 2011 PCr.LJ 448, PLD 2010 SC 585 and 1991 SCM R 599. In the case reported in 2011 PCr.LJ 448 a brother Judge of this Court while fortifying his view point by the judgment reported in 2011 SCMR page 599 has observed as under:-- " A Judicial Magistrate is competent to hear a bail matter and to decide if moved even the case is exclusively triable by the court of Sessions up to the time the matter is committed to the trial court and the trial court ceased off proceedings but the Judicial Magistrates are to exercise this discretionally power with full judicial diligence and cautiously in cases of heinous nature like murder".
14. This judgment is on field even then the learned Sessions Judge overlooked the same and observed that Judicial Magistrate wrongly exercised his jurisdiction vested under section 497, Cr.P.C. In the case reported in PLD 2010 SC 585 the honourable apext Court has held that previously before the Sessions trial started there used to be an inquiry under repealed Chapter XVIII, of the Code, which was commonly known as committal proceedings under which the Magistrate was holding inquiry after receipt of challan and taking cognizance of the offence exclusively triable by the court of Session. In the inquiry which was conducted under warrant case-trial the Magistrate used to record evidence of prosecution witnesses, exhibit all the relevant documents, property and other articles, frame charge, record statements of the accused and examine different witnesses.
Under various provisions of the Code, he used to conduct all the proceedings such as declaring accused absconder and granting bail etc. After conclusion of such proceedings the Magistrate used to evaluate the evidence to ascertain as to whether or not prima facie case was made out against the accused, if so, then he committed the accused to Court of Session for trial and if not then the accused was discharged.
15. In the same judgment it has further observed that in the year 1972 such move culminated resulting the promulgation of Law Reforms Ordinance 1972 abolishing the inquiry under Chapter XVIII of the Code by making simple procedure for sending the cases to the Court of Session without recording evidence which was made applicable from the date of notifications issued by the provinces. It is observed in the said judgment that although now a Magistrate is not required to hold an inquiry under Chapter XVIII but that does not mean he is to act merely as a post office and automatically send the case for trial to the court of Session simply because a section relating to an offence exclusively triable by a court of Session has inserted by the police in the challan. He is, in fact, required on taking cognizance of such a matter to inquire into the case and to apply his mind to whatever material is placed before him by the police, if in order to determine whether the allegations made in the police report make out a prima facie case triable exclusively by a court of Session.
16. In the same judgment it has further observed as under:-- "Thus, this court clarified the position of law that through inquiry as contemplated under repealed Chapter XVIII of the Code was dispensed with the application of mind by the Magistrate would be essential without recording of evidence. No other amendment was made under the ordinance curtailing the power of Magistrate which he used to exercise in those proceedings as such all the general powers of the Magistrate are intact."
17. Section 190(2) of the Code provides procedure to the Magistrates vide which a Magistrate is required to send the case to the Court of Sessions without recording evidence, which was enacted after repealing Chapter XVIII of the Code to make inquiry process simple. However, section 512 of the Code is a special provision applicable to absconder accused. Therefore, as per settled law the special provision will prevail upon general provision of the same enactment. Thus, section 512 of the Code is an exception to the general provision of section 190(2) and section 353 of the Code.
18. Judicial Magistrates are also vested with supervisory powers that is why whenever a criminal case is registered in a police station situated within the local limits of the Magistrate, a copy of the FIR is sent to the Magistrate for his information because the police officials are exposing themselves to take appropriate action in not submitting challan within the stipulated period of section 173 of the Code. At the same time Magistrates were asked to take steps to compel the police officers to submit challans. Generally it has been observed that after registration of the case and arrest of the accused the police does not file challan of the case due to some or other pretext and take months of time in this regard and the person who is in judicial lock-up suffers there without commencement of trial of his case. This fact sometime create awkward situation and frustrates the accused and when the challan of the case has not yet been submitted to the court of Judicial Magistrate by the police in G such situation the court of Session cannot entertain bail matter until and unless the same has been exhausted in the court of Judicial Magistrate. These facts give further support to the view that the Judicial Magistrate is empowered to entertain bail applications even in the cases exclusively triable by Sessions Judge.##TE# When the proceedings of the case are initiated to the court of Sessions under section 190(2) of the Code and then except as otherwise expressly provided by this Code no court of Session shall take cognizance of any offence as court of original jurisdiction but after initiation of the proceedings to Sessions Court the Magistrate seizes his cognizance in the case. It is the general principle of law that parties are required to choose forum of lowest grade for settlement of their disputes and obtaining reliefs. A case of civil nature normally is filed in the court of Civil Judge Ist Class and same principle has been adopted in criminal law vide which the challan of each case pertained to court of general jurisdiction is submitted to Judicial Magistrate and the Judicial Magistrate can carry each proceeding in the case including entertaining bail matters except recording evidence even in the cases exclusively triable by Sessions Judge.
19. A perusal of section 497, Cr.P.C. Shows that when any person accused of non-bailable offence is arrested or detained without warrant of any officer incharge of a police station or appears or is brought before a Court he may be released on bail but he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. It is now clear that in section 497 Cr.P.C. The words "a Court" have been used. On this point the honourable apex court has observed in a case reported in 1991 SCM R-599 as under :-##TE# 'The words, "a Court" in section 497 of the Code do not mean a trial court. If the intention had been to restrict the section to the trial court the words " trial Court " would have been used. It is only because of the words "a court" that the duty Judge or Magistrate grants bail to an accused, even though he is not the trial Court when the accused is produced before him for remand."
20. In view of the above discussion I am of the considered view that in the matters before me the learned Judicial Magistrate has rightly exercised his jurisdiction but the learned Sessions Judge while recalling the bail facility has misconceived the facts and law resulting in the suffering of the petitioners in jail calling interference by this court.
21. Consequently, the bail applications bearing Nos.53/2015, 55/2015 and 59/2015 referred to above are converted into applications under section 561-A Cr.P.C. And accepted, set aside the orders dated 22-4-2015, 22-4-2015 and 22-5-2015 passed by learned Sessions Judge Diamer in Sessions case No,29/2015, Sessions case No,30/2015 and Sessions case No,55/2015 respectively and maintained the orders of Judicial Magistrate passed in Criminal Miscellaneous No,214/2014, 215/2014 and Criminal Miscellaneous No,86/2014 dated 08/12/2014 and 20-6-2014 respectively and direct the petitioners named above be released from jail provided that they furnish additional bail bond in the sum of Rs,5,00,000/- (Five lacs) with two solvent sureties for each and each in the like amount to the entire satisfaction of learned Judicial Magistrate Chilas if they are not required to be detained in jail in any other case.