' Mst. Shamim, on 17-9-1989, lodged a report in Police Station Khan Mai to the effect that she, alongwith her husband Sada Khan deceased and brother Ahmad Ali Shah, had gone to their fields for the purpose of irrigation when the accused, petitioners herein, alongwith their co-accused, fired at the deceased effectively. Consequently, he succumbed to his injuries on his way to the hospital.
A case to this effect was registered vide F.I.R. No, 129 dated 17-9-1989 under section 302/148/149, P.P.C.
2. The petitioner and his co-accused Hayat were released on bail by the learned Additional Sessions Judge-II, Charsadda vide his order dated 17-3-1990 on the basis of a statement made by Mst. Shamim, the complainant; stating that, through the intervention of the elders' of the Illaqa, she has effected a compromise with the petitioners and that she had no objection to the confirmation of their pre-arrest ad interim bail.
3. Meanwhile, another co-accused Biladar Khan made an application for bail before arrest to the learned Additional Sessions Judge-I, Charsadda who, while confirming his pre-arrest ad interim bail, vide his order dated 10-10-1989, issued suo motu notice to the petitioners on the ground that the compromise being partial and having been rejected by the learned District Magistrate Charsadda, the petitioners could not be extended the concession of bail on that ground any longer. Later, in a detail order dated 21-6-1990, after taking into consideration the merits of the case, he recalled the order of the bail, in so far as the two petitioners were concerned. Hence the instant petition.
4. I have heard Mian Mohibullah, Advocate, learned counsel for the petitioners and Mr. Amjad Zia, Advocate, learned counsel for the State at length and also perused the record of the case with considerable degree of care.
5. It is contended on behalf of the petitioners that the bail having been granted by the learned Additional Sessions Judge-II, Charsadda, the impugned order of its recall by the learned Additional Sessions Judge-I, Charsadda is violative of subsection (5) of section 497, Cr.P.C. In that both the orders were not passed by the same Sessions Judge and as such is liable to be set aside. The learned counsel further contended that a genuine compromise has been effected between the petitioners and the complainant and the same could not be rejected by the learned District Magistrate, nor the order of bail of the petitioners could be recalled on the ground of the compromise being partial. He, therefore, maintained that so far as the petitioners are concerned, the compromise effected between them and the complainant afforded a genuine ground for their release on bail.
6. As against this, the learned counsel for the State, while supporting the impugned order of the learned Additional Sessions Judge-I, Charsadda, maintained that it does not suffer from any infirmity with reference to subsection (5) of section 497, Cr.P.C. Inasmuch as an Additional Sessions Judge is a composite part of the "Court of Session" which, under the said provision of law, can re- call the order passed by another Judge. He further contended that law does not permit the grant of concession of bail solely on the ground that a compromise has been effected between the complainant and the accused, particularly when charged with an offence falling within the prohibited clause of section 497, Cr.P.C, muchless a compromise which is partial in that one of the accused charged for the offence in the F.I.R. Stands excluded from the compromise. The learned counsel submitted that the best course for the accused petitioners is to press into service the said compromise at their trial before the learned trial Court for its acceptance so far as the petitioners are concerned and for such appropriate order as the learned trial Court may deem necessary in the circumstances of the case. He further informed the Court that complete challan has since been submitted for the trial of the accused including the petitioners.
7. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
8. In order to consider the first contention of the learned counsel for the petitioners, a reference to subsection (5) of section 497, Cr.P.C. Needs to be made: "(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 bare reading of the aforequoted provision of law would indicate that while the expression "Court of Session" used therein means any Judge, including an Additional Judge of the Court of Session and can exercise the powers to re-arrest an accused person released by the said Court, the embargo on exercising such powers is on 'any other Court' than a High Court or Court of Session that an accused person cannot be re-arrested unless released on bail by the same Court. It is therefore more than clear that such a pre-condition is not applicable to a Court of Session.
Otherwise too, when read in juxtaposition of sections 9 and 17 of the Criminal Procedure Code, I am clear in my mind, that a Sessions Judge, as also an Additional Sessions Judge, having jurisdiction in the same Sessions Division, shall be deemed to be functioning as, and within the meaning of, "Court of Session" as used in subsection (5) of section 497, Cr.P.C.
7. In this context of the matter, I have no hesitation in holding that both the learned Additional Sessions Judges, Charsadda, while exercising their jurisdiction in one and the same Sessions Division; the impugned order of the learned Additional Sessions Judge-I, Charsadda under subsection (5) of section 497, Cr.P.C. Cannot be held as suffering from any legal infirmity when he re-called the earlier order of releasing the petitioners on bail passed by the learned Additional Sessions Judge-II, Charsadda and consequently the impugned order is not violative of the law.
10. Regarding the point relating to the grant of bail solely on the basis of a compromise, irrespective of partial or in toto, I am afraid, there is no substance in the arguments of the learned counsel for the petitioners. The fact of the matter is that for releasing a person accused of non-bailable offences on bail, certain conditions are laid down in section 497, Cr.P.C. Such as provisos to subsection (1) or subsections (2) and (4); and unless the terms set in the compromise bring the case of the accused petitioners within the four corners of the aforesaid provisions of section 497 (ibid), only then a Court may be pursuaded to exercise its discretion in favour of the accused by enlarging him on bail. In other words, short of the contingencies mentioned in section 497, Cr.P.C, a compromise between the parties, however legitimate and genuine it may be, I am of the considered opinion, shall not form a valid basis for releasing an accused person on bail. Thus, a compromise simpliciter and solely can hardly furnish a valid ground to a Court of law in exercising its discretion under section 497, Cr.P.C. Favourably towards the accused person charged with a non-bailable offence.
11. Viewed the matter in the perspective of the foregoing discussion, I have arrived at an inescapable conclusion that the accused petitioners cannot claim their release on bail simply that a genuine compromise has been effected between them and the complainant.
12. I also tend to subscribe to the view of the learned counsel for the State that the compromise arrived at between the parties can be fruitfully pressed into service before the learned trial Court and can hopefully be given effect to with an object of nipping the mischief of animosity in the bud and substituting it with an augury of fraternal relations between the parties.
13. Resultantly this petition fails and is hereby dismissed.
14. It may, however, be observed that at the trial, after recording some evidence and particularly the statement of the complainant, the accused petitioners may, if so advised, apply to the learned trial Court for their release on bail and am sanguine that their application in this behalf shall be given due consideration.
Bail refused.
PLD 199] Peshawar 25 Before nail Elahi Khan and Muhammad Bashir Khan Jehangiri, JJ CHAIRMAN, WAPDA and 3 others-- Appellants versus UMAR BAKHSH-Respondent Regular First Appeal No,57-P of 1990, decided on 29th January, 1991.
(a)Civil Procedure Code (V of 1908)--0.
XXXIII, Rr. 4, 5, 6 & 7---Trial Court allowing plaintiff to sue as a pauper without examining him or his evidence in Court---Validity of---Trial Court had ignored mandatory provision of law by merely observing on order sheet that defendants were not inclined to adduce "evidence in rebuttal" and that plaintiff was allowed to sue as a pauper---Trial Court thus erred to allow plaintiff to sue as pauper without complying with procedural formalities as laid down in O.XXXIII, Civil Procedure Code, 1908.
Legally speaking, the plaintiff and his witnesses should have been examined, heard arguments which the parties desired to offer "on the question whether on the face of the application and of the evidence (if any) taken by the Court the applicant was or was not subjected to any of the prohibition specified in Rule 5 and ought to have allowed or refused to allow the applicant to sue as a pauper." The trial Judge having not complied with these provisions of Order XXXIII, C.P.C. Had committed illegality or material irregularity by allowing the applicant-plaintiff to sue in forma pauperis. [p. 28] A (a)Civil Procedure Code (V of 1908)-0.
XVII, R. 3---Defendant's failure to produce evidence on specified date---Trial Court passing ex parte decree against defendants---Validity of---Trial Court was required to decide suit on merits rather than pass a decree in summary manner without at_y discussion on issues involved in controversy---Expression to proceed to decide the suit forthwith"---Meaning, scope and import of.--[Words and phrases].
Court under Rule 3 of Order XVII, C.P.C. Had "to proceed to decide the suit forthwith." By a decision "forthwith" it is meant that the Court must decide the case on the same clay and could not adjourn the hearing to some other date and then purport to decide case on the same day. Nonetheless, a decision "forthwith" would, however, be a decision on merits. It must be on consideration of such material on the record as it was necessary. It did not at all mean that it should be a summary decision. There would be, however, one caution which need to be emphasized. The rule could he pressed into service when it was possible to decide the case on merits and it, therefore, could not apply when the suit was at a preliminary stage. Where a party had to discharge the onus of proof of an issue which was only a preliminary issue and failed to do so, the suit could not be decided under Order XVII, Rule 3, c.P.C., unless the decision also affected the merits of the case. [pp. 28, 29] B & C Muhammad Haleem v. H.E. Muhammad Naeem PLD 1969 SC 270 and Dalel Khan v. Province of West Pakistan PLD 1970 Quetta 79 rel.
(c) Civil Procedure Code (V of 1908)--- ---0. XVII, R. 3, O.XXXIII, Rr. 4, 5, 6, 7 & S.115---Revisional jurisdiction---Trial Court's order allowing plaintiff to sue as a pauper; order dismissing application for setting aside ex parte decree and ex parte decree for recovery of specified amount as damages against defendants; all were set aside- --Case was remanded to be tried afresh after allowing another chance to parties to adduce evidence in the light of directions of High Court. [p. 29] D Advocate-General for Appellants. Allandin Khan for Respondent.
Date of hearing: 29th January, 1991.
' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This Regular First Appeal is directed against the order dated 15-4-1990, of a learned Civil Judge First Class, Peshawar, whereby, he dismissed the application of the defendants-appellants for setting aside ex parte decree for recovery of Rs,2,00,000 as damages against them.
2. Facts giving rise to this appeal are that WAPDA through Project Director SCARP and Executive Engineer, Peshawar SCARP, undertook the remodelling of the drain, namely, Branch No,2 of Muhammad Zia Drain as part of its reclamation Project through Bakhtawar Shah defendant No,5.
On 20-9-1981 Umar Bakhsh plaintiff-respondent filed a suit against Chairman WAPDA and 4 others, in forma pauperis, for recovery of Rs,2,00,000 as damages. The case of the plaintiff-respondent as set up in the plaint and later tried to be established in the witness-box was that on account of excavation of a drain by the defendants-appellants his house had collapsed and thus claimed Rs,2,00,000 as damages therefor. According to averments in the plaint, plaintiff-respondent was pauper and hence the suit.
3. Defendants Nos.1 to 3 contested the suit who, in their joint written statement, pleaded that the plaintiff had neither cause of action nor locus standi; that the suit was not maintainable in the form it had been filed; that the plaintiff was not pauper; that he was estopped by his conduct and; that the suit was "mala fide, false, frivolous" and as such the defendants were entitled to compensatory costs. On merits, liability to pay any costs due to the alleged collapse of the plaintiffs house was denied. The learned trial Court, in view of the respective pleadings of the parties, concluded the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is entitled to recover Rs,2,00,000 as damages from the defendants?
(3) Whether the suit is deficiently stamped, if so, its effect?
(4) Whether the suit is bad in its present form?
(5) Whether the defendants are entitled to compensatory costs?
(6) Whether the plaintiff is estopped by his conduct?
(7) Relief.
4. The application for permission to sue in forma pauperis was initially contested by the answering defendants as well as Collector (defendant No, 6). Nonetheless, the order-sheet dated 17-12-1985 records that defendants had declined to adduce evidence in rebuttal and that in consequence, the plaintiff-respondent was allowed to sue in forma pauperis. The case was fixed for evidence.
After an adjournment at the instance of the counsel for defendants, the plaintiff-respondent's evidence was recorded and the case was posted to 25-11-1986 for the evidence of defendants- petitioners. Since they had failed to adduce evidence, therefore, the case was first adjourned to 25- 11-1986 then to 15-2-1987, thereafter to 18-4-1987 and finally to 8-6-1987, when not only the defendants were absent but their counsel was also not in attendance. Resultantly, the learned trial Judge decreed the suit of the plaintiff-respondent ex parte.
5. On 17-6-1987, the defendants-petitioners moved an application for setting aside ex parte decree.
It was contested by the plaintiff-respondent. After recording statement of one witness each on behalf of the parties, the learned trial Judge, by impugned order dated 15-4-1990, dismissed the application. Feeling dissatisfied, the defendants-appellants have come up in this Regular First Appeal.
6. The learned Advocate-General appearing on behalf of the appellants, submitted that the learned trial Court had fallen into error in passing, under Order XVII, Rule 3, C.P.C., the impugned judgment and the decree ex parte. He also urged that the decision reached under Rule 3 ibid warrants decision on merits and not in the summary manner, it has been decreed.
7. The learned counsel for the plaintiff-respondent had seriously defended the impugned judgment and the decree and maintained that in the instant case the time was granted to the appellants not once but twice to adduce evidence but they defaulted in doing so, the learned trial Court had rightly decreed the suit ex parte.
8. We have perused the record of the case carefully with the assistance of the learned Advocate- General and the learned counsel for the respondent. We regret to observe at the outset that learned trial Judge had erred to allow the plaintiff-respondent to sue as pauper without complying with the procedural formalities laid down in Order XXXIII, C.P.C. In this context, provisions of Rule 4 thereof were not adhered to and even the plaintiff-applicant was not examined. Even if this omission is ignored and notwithstanding the failure of the appellants to seriously contest the application, the trial Court was required to have fixed a day with notice to the appellants and the Government Pleader for recording within the contemplation of Rules 4 and 6 ibid such evidence as the applicant wished to adduce in proof of the respondent's pauperism. Under Rule 7 ibid the Court is bound to inquire into the plaintiff's pauperism. In the instant case, the trial Court had conveniently ignored this mandatory provision of law by merely observing on the order-sheet dated 25-11-1986 that the appellants were not inclined to adduce "evidence in rebuttal" {{URDU TEXT}}and in consequence, the applicant-plaintiff was allowed to sue as a pauper. Legally speaking, the applicant-plaintiff and his witnesses should have been examined, heard arguments which the parties desired to offer "on the question whether on the face of the application and of the evidence (if any) taken by the Court the applicant was or was not subjected to any of the prohibitions specified in Rule 5 and ought to have allowed or refused to allow the applicant to sue as a pauper." The learned trial Judge having not complied with these provisions of Order XXXIII, C.P.C. Had committed illegality or material irregularity by allowing the applicant-plaintiff to sue in forma pauperis. In exercise of our powers under section 115, C.P.C., the aforesaid order of the learned trial Court is set aside.
9. There is every force in the contention of the learned Advocate-General who represented the appellants that the learned trial Court had erred in passing the ex parte decree summarily without decision on merits and without discussing the material issues. In support of this proposition we may refer to Muhammad Haleem v. H.E. Muhammad Naeem PLD 1969 SC 270.
10. In the instant case, the onus to prove that the house in dispute in fact belonged to the plaintiff- respondent; that how much was its covered area; that it had in fact collapsed due to any act of omission or commission which is attributable to the appellants and that the extent and quantum of damages had been determined by an expert and independent witness. The suit had been decreed without having recourse to the abovementioned points and without discussing any evidence. In such a situation, it is incumbent upon the trial Court to decide the suit on merits rather than passing the decree in a summary manner without any discussion on the issues involved in the controversy. This view was expressed by their Lordships of the Supreme Court in Muhammad Haleem's cast cited above and laid down that:-- "In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non-prosecution. The entire evidence had been led and the Court should have come to a decision on merits in the matter."
This proposition was later on followed in few other reported decisions including that of Dalel Khan v.
Province of West Pakistan PLD 1970 Quetta 79. The ratio in these cases is that the Court under Rule 3 of Order XVII, C.P.C. Had "to proceed to decide the suit forthwith." By a decision "forthwith" it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide case on the same day. Nonetheless, a decision "forthwith" is, however, to be a decision on merits. It must be on consideration of such material on the record as it is necessary. It does not at all mean that it should be a summary decision. There is, however, one caution which need to be emphasized. The rule can be pressed into service when it is possible to decide the case on merits and it, therefore, cannot apply when the suit is at a preliminary stage. In another case it was pointed out that if a party has to discharge the onus of proof of an issue which is only a preliminary issue and fails to do so, the suit cannot be decided under Order XVII, Rule 3, C.P.C., unless the decision also affects the merits of the case.
11. In view of what has been discussed above, we are of the opinion that there was every justification for the Court to have refused further adjournment to the defendants-petitioners to adduce evidence. Nonetheless there was absolutely no warrant in law to have decreed the suit summarily. In exercising the powers under Rule 3 of Order XVII, C.P.C., the learned trial Judge was required to have decided the case on merits.
12. In this view of the matter, the order of the learned trial Judge allowing the plaintiff-respondent to sue as a pauper; the impugned order dismissing the application for setting aside the ex parte decree and; the ex parte decree for recovery of Rs,2,00,000 as damages against the appellants are set aside on payment of Rs,500 as costs. Resultantly, the case is remanded to the learned trial Judge to proceed with it after allowing another chance to the parties to adduce evidence in the light of the directions made in paras. 8 and 10 ante. Since it is an old matter, the office is directed to expeditiously send the record of the case to the learned trial Judge who shall decide the dispute as early as possible. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.