' ASIF SAEED KHAN KHOSA, J.---The question as to whether after having been summoned by a Trial Court under section 204, Cr.P.C. To face a trial in connection with a private complaint the person so summoned is required only to furnish a bond, with or without sureties, under section 91, Cr.PC. For his future appearance before the Trial Court or he is to apply for pre-arrest bail under section 498, Cr.P.C. Is a question which has remained a subject of some controversy in the past and, therefore, on 20.01.2012 this Court had granted leave to appeal in some of the present matters so that the issue may be conclusively resolved through an authoritative pronouncement. The leave granting order (reported as 2012 SCM R 1912) passed by a 5-member Bench of this Court reads as follows: "The question involved in these petitions is as to whether upon his summoning by a Trial Court in a case arising out of a private complaint an accused person needs to apply for bail in terms of sections 496, 497 and 498, Cr.P.C. Or in such a situation he is only to submit a bond for his appearance before the Trial Court under section 91, Cr.P.C. It appears that in different judgments different notes have been sturck by this Court on the subject and a reference in this respect may be made to the cases of Syed Muhammad Firdaus and others v. The State (2005 SCM R 784), Luqman Ali v. Hazaro and another (2010 SCM R 611) and Criminal Appeal No. 56 of 1986 (Raham Dad v. Syed Mazhar Hussain Shah) decided by this Court on 14.1.1987). At different times different High Courts had also rendered conflicting judgments on the issue. It is, therefore, imperative that such conflicts should be removed or resolved at the earliest so as to restore certainty in the matter for the guidance of all the Courts in the country. In this view of the matter leave to appeal is granted in both these petitions and the Office is directed to fix the appeals for regular hearing at the earliest possible, preferably within a period of one month. The petitioners in Criminal Petition No. 549-L of 2011 have already been admitted to ad-interim pre-arrest bail by this Court vide order dated 11.8.2011. Their ad-interim pre-arrest bail shall continue till the next date of hearing."
2. In view of the legal controversy at hand we have deemed it appropriate to resolve the legal issue first and then to leave the present appeals and petitions to be decided by appropriate Benches of this Court on the basis of their respective merits in the light of the law declared through the present judgment.
3. We have heard the learned counsel for the parties, some of the parties appearing in person and the learned Additional Prosecutors- General, Punjab appearing for the State at some length and have also attended to and perused the statutory provisions and the precedent cases referred to and relied upon by them in support of their respective submissions.
4. For a proper resolution of the legal question involved it may be advantageous to reproduce the following legal provisions of the Code of Criminal Procedure, 1898 relevant to the issue:
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 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.
204. Issue of process. (1) 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 instance, 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.
496. In what cases bail 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, sub-section (4), or section 117, sub-section (3).
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:
(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 no 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, he 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.
498. Power to direct admission to bail or reduction of bail. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.
498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc. Nothing in section 497 or section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.
5. Before embarking upon any discussion on the legal issue involved in these matters it may also be useful to refer to all the reported cases on both sides of the legal divide. The reported cases on the subject can be divided into two categories, the first category of cases is that wherein it was held that after having been summoned by a Trial Court to face a trial in connection with a private complaint the person' so summoned is required only, to furnish a bond, with or without sureties, under section 91, Cr.P.C. For his future appearance before the, Trial Court and in the second category of cases it was held that such person is to apply for pre-arrest bail under section 498, Cr.P.C. Failing which he is to be taken into custody and lodged in jail.
6. In the first category of cases, i.e., the category of cases wherein it was held that after having been summoned by a Trial Court to face a trial in connection with a private complaint the person so summoned is required only to furnish a bond, with or without sureties, under section 91, Cr.P.C.
For his future appearance before the Trial Court the pioneering and groundbreaking case was the case of Mazhar Hussain Shah v. The State (1986 P.Cr.L.J. 2359). In that case while seized of a private complaint a Sessions Judge recorded the statement of the complainant and the evidence produced at the preliminary stage and then issued process against the accused persons under section 204, Cr.P.C. In response to the summonses issued by the Sessions Judge the accused persons appeared before the Sessions Judge and filed applications for pre-arrest bail but the same were dismissed by the Sessions Judge with the observation that it was not a fit case for pre- arrest bail. The accused persons then approached the Lahore High Court, Lahore for the desired relief and Muhammad Rafiq Tarar, J. Admitted the said accused persons to pre-arrest bail and observed as follows: "3. Section 204, Cr.P.C. Provides that if the Court taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, it shall issue a summons if the case appears to be one in which, according to the fourth column of the Second Schedule, summons should issue in the first instance but 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 before it. According to fourth column a warrant should ordinarily issue in the first instance in a case under section 302, P.P.C. But in this case the Court chose to issue a summons. Section 91, Cr.P.C. Lays down that 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. Under this section a bond with or without sureties may be taken from an accused person or from a witness for his appearance. The learned Sessions Judge was empowered to issue warrant or summons for causing the accused to be brought to or appear before him and exercising that power he issued summons to the petitioners in response to which they appeared before him. He was, therefore, required to proceed under section 91, Cr.P.C., and to direct them to execute bonds with or without sureties for their appearance in Court.
' This section by necessary implication also empowers the Court to commit the person present in Court to custody if he fails to give security for his attendance. It is nobody's case that the petitioners were asked to execute bond and they had failed to do so.
' Process is issued to the accused when the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. In the circumstances, I feel inclined to the view that the petitioners are entitled to bail. The interim bail is, therefore, confirmed."
' Admission of Syed Mazhar Hussain Shah accused to pre-arrest bail by the Lahore High Court, Lahore in that case was challenged by Reham Dad complainant before this Court through Criminal Appeal No. 56 of 1986 but that appeal was dismissed by a 3-member Bench of this Court through its judgment dated 14.01.1987. The said judgment had not been published in any law report or journal and, therefore, the same is being reproduced here in full: "IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction)