This is a petition under section 497(5), Cr. P. C. By Haji Rab Nawaz, complainant/petitioner for the cancellation of the bail granted by me to Mian Safdar Khan and three others, respondents Nos. 1 to 4, on 9-4-1980 in Crl. Misc. No. 917-B of 1980.
2. The brief facts of the case are that respondents Nos. 1 to 4 and certain other persons accused in a case registered against them under sec--tions 302/148/149/109)120-B, P. P. C. For the murder of one Gulzaman on the night between 4/5-7-1978. All the accused, including the respondents, applied for bail before the Sessions Judge, Sargodha, which was rejected by him on 21-10-1978. All the accused, including the present respondents, applied to the High Court (C. R. No. 4066-B of 1978) for bail, which was refused to respondents Nos. I to 4, but allowed to the others, by my order dated 25-11-1978. The respondents then moved a petition for special leave to appeal before the Supreme Court, which was rejected on 17-6-1979. After some time, the four respondents moved another bail petition (Crl. Misc. 917-B of 1980) before the High Court on the ground that though an incomplete challan in the case had been lodged against them in the Court of the Ilaqa Magistrate, Jauharabad, in September, 1978, neither the said Ilaqa Magistrate had sent the case to the Sessions Court as required under subsection (3) of section 190 of the Criminal Procedure Code nor the said Magistrate had passed any valid remand orders under section344 of the said Code. The said bail petition having come up before me, I found that though an incomplete challan had been submitted against the petitioners on 21-9-1978 in the Court of the Ilaqa Magistrate, Jauharabad, and that the said learned Magistrate on 9-10-19'8 had also ordered that the accused should be sent for from the Jail so that the case could be sent to the Sessions, no further order was passed by the said Ilaqa Magistrate on the file till 10-12-1979 and thereafter even the orders which were passed did not relate to the remand of the petitioners or their co-accused, but were merely directions to the prosecution branch to file the complete challan as soon as possible. I also found that when the incomplete challan was filed in October, 1978, before the Ilaqa Magistrate, Jauharabad, the respondents had moved a written application before the District Magistrate, Sargodha, stating that since they apprehended danger at the hands of the opposite-party whilst being transported from Shahpur jail to the Magistrates Court at Jauh--arabad, that they should, be produced before any criminal Court at Shahpur till the complete chalhaa was filed against them, on which applica--tion, the District Magistrate, Sargodha, had ordered that the accused should be produced in the Court of the Resident Magistrate, Shahpur, for securing farzi' dates till the complete challan of the case was filed in the Court of the Ilaqa Magistrate, Jauharabad. - Due to this letter the respondents could not be summoned. Strangely, the respondents were not even produced before the Resident Magistrate, Shahpur, to secure farzi dates under sec--tion 344, Cr. P. C. What was done was that a robkar was produced off and on before the Resident Magistrate, Shahpur, by the Jail Authority for the Magistrate's endorsement and the respondents were detained in Jail on the authority thereof. The reference to ' farzi date" was construed as ' farzi peshi" and the respondents were never produced before the Resident Magistrate. In view of the flagrant and callous violation of the law by the learned Ilaqa Magistrate, Jauharabad, and the Resident Magistrate, Shahpur, I held by my order dated 9-4-1980 that the detention of the respondents since October, 1978, was illegal and that as matters stood then, they were entitled to bail. After the said order, the Police filed the complete challan before the Ilaqa Magistrate, Jauharabad who, in turn, transmitted the case to the Court of Session on 28-5-1980. It is stated that in view of my order dated 9-4-1980 allowing bail, the Sessions Judge did not pass any remand order under section 344, Cr. P. C. The present petition (Cr. M. No. 1671-B of 1980) has now been filed by Haji Rab Hawaz, complainant/ petitioner, for the cancellation of the bail previously granted by me to the respondents on 9-4-1980 inter alia on the ground that since the challan has now been filed in the Court of Session at Lahore, the earlier irregularity, if any, stands rectified and there is no reason why the respondents should not be now re-arrested.
2. In support of the petition, learned counsel for the petitioner has submitted that the complete challan was submitted by the Ilaqa Magistrate, Jauharabad, to the learned Sessions Judge, Sargodha, vide the learned Magistrate's order dated 12-5-1980 with a direction to all the accused, including the respondents, to appear before him on 28-5-1980 and that the said complete challan was received by the Sessions Judge, Sargodha, on 28-5-1980 where the accused, including the respondents, appeared through their counsel. It is, therefore, submitted that the irregularity regarding the non-submission of the complete challan stands rectified and that there is no reason why the respondents should not be re-arrested as the technical flaw which necessitated their release stands removed. It was next contended that the respondents, subsequent to their release, had threatened Sultan, Haji Pervaiz, Haji Muhammad Amir and Haji Zia-ul-Hassan P. Ws. On various dates ; that on 25-5-1980 Mian Safdar Khan and Mian Sardar Bakhsb, respondents Nos. 1 and 2, with 25/30 other persons, most of whom were armed, came to the adda of Super Awan Bus Service, Sargodha, and threa--tened to kill Mumtaz Khan, Munawar Khan, and Abdul Aziz Khan, who managed to escape, but instead beat up a number of drivers and cleaners of the complainant party at the said adda; that on 26-5-1980 a bus of the accused party tried to push the bus of the complainant of the road, in which incident the driver of the accused's bus service tried to kill the driver of the complainants bus ; that some time in May, 1980, the Police recovered arms and ammunition from the adda of the respondents' Bus Service ; and that on 6-6-1980 the Superintendent of Police, Sargodha, addressing a press conference, stated that the owners of Awan Bus Service had been collecting unlicensed arms for use against the owners and employees of the Awan Super Express and that had the Police not recovered the same, the said arms would have been used against members of the complainant party. Affidavits etc. In the said connection lodged with the petition and the additional grounds, were referred to by the learned counsel. In the light of these submissions, the learned counsel for the complainant petitioner submitted that the bail of the respondents be cancelled.
3. Learned counsel for the, respondents, who strongly opposed the petition, submitted that the bail had been by me not only on the ground of absence of remand orders which had not been passed in the case from October, 1978 to April, 1980, but also on the ground of delay in the in--vestigation of the case, which had resulted in the delay in, the commencement of the trial. It was further submitted that since the bail had been allowed on these two grounds, it could not be recalled merely on the basis of events which had taken place subsequently. In this connection, it was submitted that unless it could be shown that the order allowing bail had been obtained by misrepresentation or suppression of facts or that the concession of bail had been abused as to obstruct or hamper the course of trial the same should not be cancelled. In this connection Nazar Muhammad v. The State (1). and Mehr Ghulam Nab! v. Muhammad Shafique (2) were cited. It was further submitted that the present petition for cancellation of bail was not moved by the State but by the complainant and that 'it did not lie within the compass of a,private party to secure the cancellation of an order granting bail, as matters pertaining to bail were privy between the State and the accused. In this connection Nazar Muhammad v. The State and another (3) was cited.
Lastly, as regards the submissions made by the learned counsel for the petitioner regarding the respondents having abused the concession of bail, counter affidavits filed on behalf of the respondents were referred, to show that the evidence produced by the opposite-party was false and motivated primarily to support the present petition. In these circumstances, it was requested that the petition for cancellation of bail be dismissed.
4. The learned counsel for the State supported the submissions made by the learned counsel for the petitioner.
5. I have given my anxious consideration to this case. In the first place, I must confess that I ordered the release of the respondents on bail primarily as no proper remand orders were passed under section 344, Cr. P. C. From October; 1978 to April, 1980, for want of the complete challan being filed in Court. The bail was not allowed on the ground of delay in the commencement of the trial. At the time when the bail application (Crl. Misc. No. 917-B of 1980) was being argued before me, it was stated on behalf of the State that the complete challan was being filed soon, perhaps within ten to fifteen days. The Superintendent of Police, Crimes Branch, Punjab, Lahore, who had been called upon by me to submit in writing when the complete challan would be lodged in Court, had by his Letter No. 5203 dated 31-3-1980 addressed to the Deputy Registrar (Judicial) of this Court intimated that the same would be lodged by 7-4-1980. Since repeated and protracted investigations had taken place earlier, I bad casually observed that such statements had been made before me previously as well, but I clearly held that in view of what had been stated in para. 6 of my order, the detention of the respondents from October, 1978, was illegal and that, there--fore, the petitioners were then entitled to bail. Bail was not allowed on the ground of delay in the commencement of the trial, primarily because of the amendment made to section 497 of the Criminal Procedure Code by the Code of Criminal Procedure (Second Amendment) Ordinance, LXXI of 1979, which impliedly recognises a continuous detention period of less than two years in cases where a person is accused of an offence punishable with death, Is not statutorily entitling him to the grant of bail on the ground of delay in he commencement of the trial, under the third proviso to subsection (1) of section 497 of the Code.
(1) 1980 P Cr. L J 1026(2) 1979 SCMR 479
(3) 1977 P Cr. L ) 277 Since the complete challan has now been filed and the case has been transmitted to the Court of Session at Sargodha, the circum--stance which prevented the Ilaqa Magistrate to pass proper remand orders detaining the respondents, pending the adjournment of the inquiry, or the Sessions Judge, from detaining the respondents, pending the com--mencement of the trial, no longer prevails. The learned Sessions Judge, before whom all the accused (including the present respondents) who were on bail, appeared through their counsel, could not pass a proper order under section 344, Cr. P. C. So far as where the present respondents were concerned, as they were on bail which was granted by this Court. Unless the order dated 9-4-1980 granting bail to the respondents is recalled, the learned Sessions Judge will not be able to act under section 344, Cr. P.
C. Since the circum--stance which led to the illegality, on which bail was granted, no longer exists, it is. Necessary to recall my order dated 9-4-1980 passed in Cr. M. No. 917-B of 1980 to facilitate the learned Sessions Judge to pass a proper remand order under section 344, Cr. P. C. If this is not done, the respondents, whose prayer for bail has been rejected earlier on merits, will enjoy the concession of bail indefinitely against the provisions of subsection (1) of section 497 of the Code. In Muhammad Akram v. Muhammad Yousuf 1978 P Cr. L J 66where bail was allowed on the sole ground that the accused had not been remanded to judicial custody as required under section 344, Cr. P. C. And later, pursuant to a direction of the High Court made in a revision petition filed by the complainant, the High Court had directed the Additional Sessions Judge to summon the accused from Jail and pass a remand order under section 344, Cr. P. C., which he had done, the High Court cancelled the bail earlier granted by it on the ground that the illegality, on the basis of which the bail. Was allowed, stood rectified. In the present case, the circumstance which prevented the Ilaqa Magistrate or the Sessions Judge from passing proper remand orders, now stand rectified. Mehr Ghulum Nabi's case cited by the learned counsel for the respondents is distinguishable. In that case bail which was granted on the ground of two years' delay in the commencement of the trial was sought to be cancelled on the ground that mere delay was no ground on which bail could be allowed. The learned Single Judge, before whom that application came up, observed that once he had exercised his discretion to grant bail, he could not recall it in the absence of cogent reasons, such as that the order was obtained through misrepresentation or suppression of facts or that the-concession was abused, and that since there were no such seasons, he rejected the application. The present case proceeds on different facts. Bail here was granted in view of the absence of remand orders, which arose out of the non-submission of the complete challan. The complete challan having been filed, the circumstance which prevented the illegality stands rectified. The accused cannot be permitted to indefinite enjoy the concession of bail. The accused cannot be allowed to capitalise on orders passed in disregard of the law by the officers of the Court. If such a course is permitted, dishonest officers will place a premium on such misconduct. The principle laid down in Muhammad Akram's case, is there--fore, correct. I respectfully differ from the view taken in Nazar Muhammad' case.
For the foregoing reasons, in exercise of my powers under subsection (5) of section 497 read with section 561-A of the Criminal Procedure Code, I hereby accept this petition and recall my order dated 9-4-1980 passed in Cr. M. No. 917-B of 1980 and direct respondents Nos. I to 4 to appear and surrender before the learned Sessions Judge, Sargodha, on 23r August, 1980, so that the learned Sessions Judge can pass a proper remand order in respect of the said respondents under section 344 of the Code. The respondents will be at liberty to apply for bail before the learned Sessions Judge under the third proviso to subsection (1) of section 497 of the Criminal Procedure Code, in which event the learned Sessions Judge shall deal with that application on its own merits. In case such an application is lodged, the complainant can file objections thereto to show why bail should not be allowed, in view of the various violations made by the respondents to the concession granted, as have been urged before me. If such objections are filed or urged, the learned Sessions Judge shall consider the same, before passing any final order on the bail petition. s. G. D. Bail cancelled.