C.M. No.1305 of 2019.
ANW AARUL HAQ PANNUN, J.---By means of instant criminal miscellaneou s application, the applicant has sought the relief of grant of bail, in offences under sections 337-A(i) and 337-F(i), P.P.C., besides addition thereof in earlier post arrest bail granting order dated 24.10.2019, passed in Crl. Misc. No.6039-B of 2019 (Ghulam Murtaza v. State etc.) in case FIR No. 323, dated 10.7.2019, offence under sections 302, 324, 109, 34, P.P.C., at Police Station Saddar Chichawatni, District Sahiwal. The instant application has been allowed through the short order dated 05.1 1.2019 with the observations that "Since the petitioner has already been granted bail in the principal offence i.e. 302, 324, 109 and 34, P.P.C. and the aforesaid offences are bailable in nature, therefore, the application is allowed through this short order and offences 337-A(i) and 337-F(i), P.P.C. stand added in the bail granting order dated 24.10.2019. This order shall be read as part and parcel of the bail granting order .
It has been noticed that on account of identical omissions, which are ministerial' in nature, the accused have to face many hardships, therefore, in order to devise remedial measures in such like matters, detailed reasons with appropriate directions to the concerned quarters shall follow , later on ."
2. Precisely the factual background of instant Criminal Miscellaneous Application is that as a result of registration of afore referred criminal case with the allegations that while armed with fire-arm weapons in furtherance of their common intention, the applicant along with his co-accused had committed murde r of one Muhammad Hasnain, i.e. the son of the complainant besides causing injuries to Niaz Ahmad and Fakhar Iqbal PWs.
3. Perusal of record reveals that both the above named injured persons were medically examined under the supervision of police. The copies of MLCs appended with this petition show that at the time of their issuanc e by the initial Medical Officer, the injuries, which he observed on the bodies of examinees, were kept under observation and the nature thereof was declared later-on as "Shajjah-i-Khafifah " and "Ghayr -Jaifah Damiyah " falling within the mischief of Sections 337-A(i) and 337-F(i), P.P.C. respectively . On account of this reason, it appears that these offences/sections could not have been inserted in the FIR' at the time of its chalking out. These offences/sections have not even been added/ reflected in the certified copy of FIR annexed with the petition. It may also be relevant to observe that the learned defence counsel even did not mention these sections/of fences on the memo of bail petition moved either to the learned trial Court or before this Court. The lower Court, while deciding the bail application has also failed to mention about the addition of these offences in its bail dismissing order . The jail authorities also did not bother to rectify the omission of non-mentioning of these sections in the Wakalatnama, while comparing the particulars of the accused, with their own record, when it was presented for attestation. At the time of hearing of bail application before this Court, even none of the "sides pointe d out the above noted deficiency/omission. However , this Court after perusing the record, while passing the bail granting order , observed that "no injury towards the deceased is attributed to the petitioner during the course of commission of crime, however , only injury attributed to him is on the person of injured PW Niaz Ahmad, comes within the mischief of section 337F(i), P.P.C., which is bailable." Despite submission of bail bonds in terms of the bail granting order dated 24.10.2019 and issuance of release robkar , the jail authorities had refused to release the accused/petitioner from jail only on the ground that since the offences under Sections 337-A(i) and 337-F(i), P.P.C. have not been mentioned in the relevant papers/release robkar and available record with the jail authorities. Hence, this petition.
4. While relying upon case law titled "Mst. Shahida Parveen v. The State and another "(1995 MLD 1082 )" and "Abdul Shakoor v.
The State" (2004 PCr.LJ 399), the learned counsel for the petitioner submits that the bail is always granted to an accused, after considering the facts of a particular case/FIR in its totality , therefore, after acceptance of bail bonds in terms of bail granting order , which is followed by the issuance of release robkar of the accused, the jail authorities cannot refuse to release the accused from the jail either on the ground that some particular sections or the offences have not been mention ed in the release robkar or they do not tally with the record of the accused maintained by the jail authorities.
5. On the other hand, learned Deputy Prosecutor General relying upon case law titled "Waqar Ahmad and another v. Chairman, National Accountability Bureau, Islamabad and another" (PLD 2015 Sindh 295) and an unreported judgment dated 15.07.2019 passed by the Islamabad High Court, Islamabad in Crl. Misc. No.461-M/2019 (Talat Hussain v. Aqib Mehmood and another) while opposing the above noted contentions of the petitioner's counsel has submitted that the bail is always granted in the offence either mentioned in the FIR or the offences which are added during the investigation showing the charge against the accused, therefore, the mentioning of offences besides the number of FIR is important in bail granting order . He, however , offered his no objection to the acceptance of instant application.
6. After hearing all concerned and perusing the record, it is felt appropriate to refer the relevant provisions of law hereunder for the decision of the issue seeking its resolution:- According to Section 4 (b) of the Code of Criminal Procedure Code, 1898 "Bailable Offence" means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence " means any other offence; Section 4 (o) of the Code of Criminal Procedure Code, 1898 "Offence" . "Offence" means any act or omission made punishable by any law for the time being in force , it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.
Section 28 of the Code of Criminal Procedure Code, 1898 Offence under Penal Code . Subject to the other provisions of this Code any of fence under the Pakistan Penal Code may be tried:
(a) by the High Court; or
(b) by the Courts of Sessions; or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable .
This schedule besides above also depicts in its column No.1, "the Section", No.2, "the offences", No.3 "Whether the police may arrest without warrant or not", No.4 "Whether a warrant or a summons shall be issued", No.5 "Whether a particular offence is bailable or not", No.6 "Whether compoundable or not", No.7 "Punishment under the Pakistan Penal Code". For further clarification, the synopsis of the Schedule-II is reproduced hereunder:- 1 2 3 4 5 6 7 8 Section Offence Whether the police may arrest without warrant or notWhether a warrant or a summons shall ordinarily issue in the first instanceWhether bailable or notWhether compoundable or notPunishment under the Pakistan Penal CodeBy what Court triable
7. It is also felt necessitated, to have a glance over the provisions contained in Chapter XXXIX from Sections 496 to 502, Cr.P.C. with title of BAIL . There can be no denial to the legal proposition that every section has got its own importance. In order to seek clarity about the meaning and object of a certain provi sions, it is always necessary to read such Section with reference to its subsequent Section(s) because the latter Sections always explain the limitation of the former . Sections 496, 497 and 498-A, Cr.P.C in verbatim are reproduced hereunder:-- Section 496, Cr .P.C, 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 incharge of a police-station or appears or is brought before a Court, and is prepare d 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 of 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 provide: Section 497 Cr .P.C, When bail may be taken in cases of non-bailable offence ."
(1) When any person accused of 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 appears 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 , 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 sub-section (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 reasonab le 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 .
[498-A Cr.P.C (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 bail, or 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.]
8. The integrated reading of the above provisions leaves no room in drawing a conclusion that apart-from other particulars of the case relating to the FIR and the accused, the offence with which he is charged, is more significant and vital for the release of an accused on bail. According to Section 496, Cr.P.C, any person other than a person accused of non-bailable offence , if arrested or detained without warrant by an officer incharge of the police station or appears or is brought before the 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. In addition to above, such officer or Court, if he or it thinks fit instead of taking bail from such person, may discharge him on his executing a bond without sureties for his appearance . However , in case of showing of his willingness by the accused for submission of bail bonds, to the satisfaction of the officer incharge of the Police Station or the Court before which he has been produced, there remains no option with such officer or the Court, as the case may be, except to release him while accepting his bail bonds. On the other hand, if a person accused of a non-bailable offence is arrested or detained, he can only seek relief of his release on bail, on the grounds which have duly been mentioned in Section 497 Cr.P.C. The court, subject to procedure prescribed, can exercise its power for the release of the accused, who has been arrested or detained for committing a non-bailable offence on any of the grounds mentioned in the provision itself. The superior Courts from time to time through their authoritative pronouncement keep on laying down principles for regulating the exercise of discretion and power by the subordinate courts for the grant of bail to an accused. Through the above provisions, the legislature quite distinctly and wisely has demarcated the difference between the procedure and power of the Courts which they exercise for the release of the accused involved in bailable or non-bailable offences. As a result of above discussion, it is concluded that the serial number of the FIR alongwith othe r particulars of the accused and "the offence or offences", all are equally relevant. In order to enjoy the concession of bail by way of his release in a particular "case", the accused has to seek his bail in "each and every offence" for which he A has been charged with, either at the inception of the registration of the FIR or as a result of any subsequent addition thereof during the course of investigation or by way of framing of charge by a Court. The argument of learned counsel for the petitioner in the light of above discussion is, therefore, repelled whereas the argument of learned Prosec utor shall hold the field similarly the law laid down in the judgment cited by him and referred above is correct exposition of law .
9. The relief prayed for through this miscellaneous petition although has already been granted to the petitioner through a short order , however , considering the consequential effects and hardships of such minor omissions of identical nature, in response to the notice issued by this Court , D.I.G Prisons, Multan Region, Multan and District and Sessions Judge/Senior Additional Registrar of this Court submitted their respective reports, which have been made part of the record. Let me say without qualm of any reservation that having been more than a quarter of century at the Bar, and now at the Bench, it has been observed that due to non-addressing of such minor issues of identical nature/ highlighted above entail into hardships, unnecessary monetary loss of litigants besides being a continuous source of increase in the quantum of litigation consuming the court's precious time at the cost of public expense, which can objectively be utilized for the decision of other substantive public litigation, requiring urgent disposal. According to the proforma attached with the report of D.I.G Prisons, Multan Region Multan, bearing Memo No.Lega1/2019/20504 dated 05.11.2019, 316 cases causing delay in release of an accused from jail have occurred only within the Multan Region w.e.f. 01.01.2019 to 02.11.2019 i.e. within 10 months . This situation is sufficient for eye openin g and requiring immediate resolution of the issue. Earlier a Standard Operating Procedure vide letter No.21/LHC dated 25.04.2012 for communication of release orders/robkars to prisons , hereinafter to be referred as Standard Operating Procedure under the above subject was issued and had duly been communicated by the Registrar of this Court to all the District and Sessions Judges, all the District and Sessions Judges on ex-cadre, Inspector General Police (Punjab) and the Home Secretary Government of the (Punjab) Lahore. Being relevant it is reproduced as under:-
1. Every Judge of District Judiciary dealing with criminal work shall prepare a "Register of Release Robkars" in addition to register of bail applications and register of bail bonds. Such register will remain in personal custody of respective Judicial Officer and will contain following particulars, date wise: a. Serial number . b. Name and parentage of accused to be released. c. FIR number d. Of fences e. Date of order/judgment (bail, acquittal etc.).
2. Every robkar shall contain serial number of bail application register , bail bond register and release robkar register , as well. A standard stamp shall be prepared on the next date of hearing used for endorsing all the three members at one place.
3. After issuing last robkar in a day, Judicial Officer will close entries for the day with his signatures, like bank books. Such register should be inspected by Sessions Judge making periodical surprise inspections, and should be consigned to record on relinquishment of charge by the Judge on his transfer , and a new register to be opened up by his successor .
4. Superintendent Sessions Court will prepare a register of robkars for Courts at headquarters, and a similar register will be prepared by Stenographer/ Reader of ASH or if no ASJ there, by Stenographer/Reader of Senior most Civil Judge of Sub-Division, to enter all robkars received from respective Courts.
5. At District Headquarters, all release robkars will be forwarded by Presiding Officers, in a sealed envelope, to Superintendent of Sessions Court, duly acknowledged by him in the Court register . The Superintendent will examine the contents and signatures of Presiding Officers, put his signatures on Robkar , after verification, enter in his register of Robkar as well record his register number below the serial numbers recorded by the Presiding Of ficer.
6. At Sub-Divisions, all release robkars will be forwarded in sealed envelops by Judicial Officers to the Court of Additional Sessions Judge-I and in case there is no Additional Sessions Judge at the sub-division, to the Court of Senior most Judicial Officers Stenographer/Reader of the Court receiving such Robkars would acknowledge receipt in Robkar Register of the forwarding Court, as well as enter all Robkars in the register of such Court and following the exercise prescribed for the Headquarters, would record serial number of his register on the Robkar as well, and shall forward in sealed cover expeditiously to. the Prison directly through duly designated of ficial.
7. Every Sessions Judge would prepare a list of one or more Court officials from Headquarter as well from each sub-division of the District separately , designated to receive sealed packets of release issued special identity cards carrying their photographs attested by Sessions Judge. List of such officials would be provided to the Superintendent of respective prison along with specimen signatures, NIC number and cell number of those officials which will be kept in safe record at the prison. Any change in the list would be duly notified to the prison. Only such notified officials would receive sealed packets of robkars from the Headquarter as well from sub-division and they will deliver to the prison expeditiously . Time of delivery of packets would be recorded at both ends to ascertain any undue delay in transmission of robkars.
8. Whenever an under-custody accused is acquitted by a trial Court in the District Judiciary , in addition to endorsement on the remand orders, a separate short order of acquittal would also be prepared and signed by the Presiding Officer , and forwarded to the Prison in sealed cover through usual mode, prescribed for release robkars.
9. On receipt of the sealed robkars and memorandum, the Superintendent of prisons would act in accordance with relevant laws and the Prisons Rules for verification and compliance.
10. Whenever an order/judgment of release/acquittal is received in the office of District and Sessions Judge from the High Court, the Superintendent of Sessions Court, or any other official of his establishment duly designated by the Sessions Judge, would get it confirmed telephonically from the Formal Order Writer (FOW) of Lahore High Court who would confirm the same with help of the register of issuance of dockets .
11. The Deputy Registrars (Judicial) at Lahore High Court as well as at all the Benches would be responsible for integrity , and correctness of all entries in the registers of issuance of dockets and the Additional Registrar (Judicial) would be competent to make standing instructions for the process of movement of judicial files, preparation and communication of certified copies of executable orders/judgments, with approval of the Registrar .
(JAVAID RASHID MAHBOOBI)
DISTRICT AND SESSIONS JUDGE/ (INQ.,RESEARCH AND DEVELOPMENT)
10. The prison department in pursuance of aforesaid SOPs has also framed its own SOPs in Urdu language, which at present are being followed. Whenever , according to the report, any under-trial accu sed is remanded to jail in pursuance of an order passed under Section 344 Cr.P.C by learned Courts, the accused is only accompanied by a judicial warrant/robkar for his admission to prison. The copy of request of police for extension of physical remand or judicial remand/remand paper along with order of the court remanding the accused to judicial custody is not sent to the prison, which for all practical purposes contain the details of the offences, the accused is charged with at the time of his admission to jail. Although the instruction mentioned at serial No. 8 of the aforesa id SOPs reproduced hereinabove, sufficiently and effectively caters for the purpose for release of an accused on his acquittal from the prison but it does not serve the purpose for release of the accused on bail, pending trial.
11. It will be important to point out that on admission to jail, the particulars of under-trial prisoner/accused comprising of his name, complete address, FIR number and the offences etc. in which the accused is required to be detained in jail are recorded in Register No.1, which is maintained in terms of Rule 1242 of Prisons Rules, 1978. For ready reference, the synopsis of Register No.1 showing various columns for making relevant entries of particulars of the under-trial prisoner is reproduced as under:- REGISTER NO.1 Date of AdmissionAdmission No.Name and ParentsResidence Village, Police Station, DistrictSex Religion Caste OccupationThumb impressionName of committing courtDate of commitment warrant and sectionDate of production in courtPrisoners Property With prisonerIn store OF UNDER TRIAL PRISONERS Personal description and identification markInquiries if any on admissionINITIALS Disposal Initial Remarks Asst.
Supdt.Dy.
Supdt.Supdt. Authority if convicted admission No. in register No. 2Asst.
Supdt.Dy.
Supdt.Supdt.
Hence, if, the copy of remand paper and order of Court committing the accused to jail along with the robkar are accompanied by the accused, the jail authorities while comparing ' both the documents with each-other , may be in a better position to make correct entries regarding the particulars of the accused and in this way , the chances of such omissions shall be minimized.
12. The above discussion leads to conclusion that after grant of post arrest bail to an accused, submission of requisite bail bonds and issuance of release robkar by Courts, the delay in release of under-trial prisoner from the jail, sometimes, is mainly caused, because of mistake/omission of ministerial nature, non-provision of correct particulars of the accused i.e. FIR number and the offences being in-conformity with the relevant record maintained by the jail authority because the said entries in jail record are based on the particulars of the accused, given in the judicial warrant/ robkar {URDU TEXT} accompanied by the accused at the time of his/their admission to prison/jail, therefore, to avoid the pointed out ensuing hardships, it may be appropriate that the Courts while remanding the accused to prison should also send a copy of remand paper along with judicial warrant/robkar {URDU TEXT} to the concerned jail. The jail authority at the time of admission of accused/under-trial prisoner should make a comparison of the particulars mentioned in the remand paper with the judicial warrant, so that the chances of any discrepancy in recording the particulars of the accused in the relevant record may be reduced/minimized. Moreover, if a power of attorney for its presentation to any Court of law for bail or trial is received in the jail, for its constitution, the jail authority should attest the thumb impression or signatures of the accused after comparing it with the particulars of the accused mentioned in the "wakalatnama" with those mentioned in Register No.1 and in case of any discrepancy, the same should be rectified/added.
13. For what has been discussed above, the instant C.M. is allowed and offences under Sections 337-A(i) and 337-F(i), P.P.C. stand added in the bail granting order dated 24.10.2019.
14. Before parting with this order , the following directions are issued:-
1. That all the learned Subordinate Courts while granting judicial remand under Section 344, Cr.P.0 shall also send a copy of remand paper , its order thereon along with the judicial warrant {{URDU TEXT}} to the concerned jail for admission of the accused to prison.
2. That the jail authorities at the time of admission of the accused to prison, shall enter accurately while tallying the particulars of the accused with those mentioned in the remand paper and judicial warrant, in the relevant register maintained by it under the Jail Manual/Rules.
3. The jail authorities before attestation of thumb impressions or the signatures of the accused/prisoners, shall ensure that the particulars of prisoner given in the power of attorney/ wakalatnama are in conformity with the particulars mentioned in the jail record and if any deficiency is found, the same shall be rectified accordingly .
4. The Prosecutors under the provisions of Code of Criminal Procedure, 1898 and the Punjab Criminal Prosecution Service Act, 2006, are responsible for conducting prosecution of the accused and during discharge of this duty, they are privileged with the authority to examine the record of the case, therefore, all the learned Prosecutors are bound to bring any deficiency/ omission regarding addition or deletion of offence etc., if any, in notice of the Court, so that such deficiency/omission in particulars of the accused may be made up at that stage.
5. The Court of first instance at the time of decision of bail application shall objectively peruse the record of the case and if any deficiency/omission in the particulars of the accused on the memo of bail petition is found while taking judicial notice or on its pointing out by the Prosecutor , the requisite observation shall be made in writing in its order by the Court specifically , so that the release robkar may be issued with exact particulars of the accused.
6. The bail petitions, in case of post arrest bail application, shall preferably be drafted by the Advocates with the particulars of the accused given in the remand order instead of the FIR.
7. All the police officials before issuing a certified copy of FIR shall ensure that the exact particulars of the accused including addition or omission, if any of the of fence made so far has been reflected in it.
8. Office is directed to transmit copy of this order to the Registrar of this Court, who shall circulate the same to all the Sessions Divisions for its onward transmission to the courts concerned, I.G. Punjab (Police), I.G. Prisons/jail authorities and Prosecutor General (Punjab) for their guidance and issuance of instructions for compliance.