' By this ordgr I propose to dispose of the following four bail applications which arise out of the same case and have common questions of law and fact:--
(1) Criminal Miscellaneous No,2039/B of 1996
(i) Maqbool Ahmad, and
(ii) Muhammad Aslam versus
(i) The State and
(ii) Ameer Ali.
(2) Criminal Miscellaneous No,2128/B of 1996
(i) Baboo Muhammad Ishaq,
(ii) Master Asif, and
(iii) Akhtar versus
(i) The State, and
(ii) Ameer Ali.
(3) Criminal Miscellaneous No,2329/B of 1996 Muhammad Nawaz versus
(i) The State and
(ii) Ameer Ali
(4) Criminal Miscellaneous No,5357/B of 1996 Muhammad Aslam versus
(i) The State and
(ii) Ameer Ali.
2. The relevant facts which gave rise to the above applications are that on 13-12-1992 a case (F.I.R.
No,285 of 1992) under section 319, P.P.C. Was registered at Police Station Pindi Bhattian, Hafizabad on the statement of Ameer Ali respondent No,2 in the abovementioned applications and hereinafter referred to as the complainant, against Mukhtar Ahmad, Inspector/S.H.O., Police Station Pindi Bhattian, Maqbool Ahmad, Sub-Inspector, Muhammad Aslam, A.S.-I. Baboo Muhammad Ishaq, Akhtar, Master Asif and two Constables who could be identified by the complainant if brought before him. It was alleged on 7-9-1992 Muhammad Munir, the brother of the complainant, hereinafter referred to as the deceased, was taken into illegal custody by the abovementioned police officials and taken to the police station where he was tortured. As a result of the said severe torture he became unconscious and was removed to the Mayo Hospital, Lahore where he died on 26-9-1992. The complainant alleged that the aforementioned accused had intentionally caused the death of his deceased brother through torture.
3. The concerned police authorities/Investigating Agency came to the conclusion that only an offence under section 319, P.P.C. (Qatl-i-Amd) was constituted. However, on the direction of the High Court the investigation of the case was entrusted to Crimes Branch and the Investigating Officer came to the conclusion that only an offence under section 337, P.P.C. Was constituted against Maqbool Ahmad, Sub-Inspector only.
4. On 13-9-1994 Ameer Ali, complainant instituted a private complaint under sections 302, 342, 364, 147, 148 and 201, P.P.C. In the Court of the learned Sessions Judge, Hafizabad against the aforementioned accused. The learned Sessions Judge sent the complaint to a Magistrate for an inquiry under section 202, Cr.P.C. The learned Magistrate held the requisite inquiry and came to the conclusion that there appears sufficient ground for proceeding against the accused. After considering the said inquiry report the learned Sessions Judge made the following order on 29-1- 1995:-- "In view of the statement of the complainant and the preliminary report submitted by the Magistrate 1st Class Hafizabad, there is sufficient ground for proceeding against all the accused who stand involved in this complaint with the allegation of murder of Muhammad Munir. All the accused are summoned to face trial by way of issuance of non-bailable warrants of arrest for 7-3- 1995."
5. The accused petitioners appeared before the learned Sessions Judge and moved applications for their pre-arrest bail but their bail applications were dismissed vide order, dated 13-5-1996. They have now approached this Court through the abovementioned applications for their pre-arrest bail.
6. It may be pointed out that Muhammad Aslam accused, who was one of the petitioners in Criminal Miscellaneous No,2039/B of 1996 absented himself on 23-9-1996 and, therefore, the said bail application to his extent was dismissed. Later on he moved fresh application for his pre-arrest bail through Criminal Miscellaneous No,5357/B of 1996.
7. I have heard the parties' learned counsel and have also gone through the material available on record.
8. Learned counsel for the accused petitioners submitted that they had been falsely implicated in the case, that the report of the Inquiry Magistrate and the order of the learned Sessions Judge, dated 29-1-1995 were vague in so far as it was not specified as to what offences the aforesaid accused petitioners had committed, that since a process had been issued to the petitioners in a complaint case the learned Sessions Judge should have issued bailable warrants of arrest against them instead of issuing non-bailable warrants and that when the petitioners had appeared before the learned Sessions Judge, ordinarily, in a complaint case they should have been released on executing bonds with or without sureties for their appearance in the said Court under section 91, Cr.P.C.
9. Learned counsel for the State supporting the contention raised on behalf of the petitioners submitted that the summoning order, dated 29-1-1995 passed by the learned Sessions Judge was too vague and, therefore, the same should be struck down in exercise of suo motu provisional powers and the case be sent back to the learned Sessions Judge with a direction to pass a proper order afresh.
10. On the other hand learned counsel for the complainant submitted that the bail applications moved by the petitioners were liable to be dismissed merely on the ground that they did not contain any allegation of mala fides. He further submitted that the order, dated 29-1-1995 could not be described as a vague order and the learned Sessions Judge was not required to write a detailed judgment.
11. Order, dated 29-1-1995 was passed by the learned Sessions Judge under section 204, Cr.P.C.
After considering the report of the Inquiry Magistrate. It is true that he has not given detailed reasons for the summoning of the accused and has also not specified the offences for which they were to be tried but this does not mean that he had not applied his mind to the facts of the case.
Under section 204, Cr.P.C. He could issue process to the accused on being satisfied that there was sufficient ground for proceeding against them. He was not required under the law to state reasons in support of his order. In this connection reliance is placed on Manzoor Hussain and another v.
Manzoor Hussain PLD 1974 Lah.
202. Thus the contention raised by learned counsel for the petitioners that the order, dated 29-1- 1995 was vague and liable to be set aside has no force.
12. The next question which falls for consideration is whether the learned Sessions Judge could straightaway issue non-bailable warrants of arrest against the accused while issuing process under section 204, Cr.P.C. Non-bailable warrants of arrest had been issued to the petitioners under section 302, P.P.C. i,e, for the murder of Muhammad Munir deceased. According to fourth column of the Second Schedule of the Criminal Procedure Code learned Sessions Judge was competent to issue a warrant in such a case. He could also in his discretion issue a summons or bailable warrants against the petitioners to secure their attendance before the Court for trial. Since the petitioners had not been found guilty of murder by various Investigating Agencies it would have been proper for the learned Sessions Judge to issue summons or bailable warrants against the petitioners to procure their attendance. This view has the support of the law laid down in Mumtaz Ahmed and another v. The State 1990 PCr.L1 189 Lahore.
13. Admittedly the petitioners are accused persons in a private complaint. After the issuance of a process against them under section 204, Cr.P.C. When they had put in appearance before the trial Court the learned Sessions Judge should have acted in accordance with the provisions of section 91, Cr.P.C. Which reads as follows:- "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."
It has been held in Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 (Lahore) that after appearance of the accused in Court in pursuance of a process issued under section 204, Cr.P.C.
The trial Court was required to proceed under section 91, Cr.P.C. And to direct the accused to execute bonds with or without sureties for appearance in Court. Admittedly in the present case the accused/ petitioners were not asked to execute bonds. This was a lapse on the part of the learned trial Court which militates against the law laid down by Superior Courts. In my opinion the learned Sessions Judge should have asked the petitioners to execute bonds for their appearance even if they had been summoned through non-bailable warrants of arrest.
14. From the dictum laid down in the aforecited Mazhar Hussain Shah's case it emanates that the learned Sessions Judge had wrongly proceeded to consider that the petitioners had applied for their pre-arrest bail. In the a fore cited case the facts are identical to the present case. A few Police Officers were summoned in a private complaint under sections 120-B, 148, 302, 109 and 149, P.P.C.
They appeared before the trial Court and moved applications for bail. The Court treated the said applications as applications for pre-arrest bail and dismissed them. It was held that the observation of the learned trial Court that it was a case of pre-arrest bail was misconceived and the accused were found to be entitled to bail. It was further held that existence of sufficient grounds for proceedings in a complaint case could not be equated with the existence of reasonable grounds that the accused was guilty of an offence punishable with death or imprisonment for ten years. In this view of the matter the present applications, in stricto senso, could not be considered to be applications for pre-arrest bail and, therefore, the contention that the petitioners had not alleged mala fides was irrelevant...
15. In view of what has been stated above the interim to Maqbool Ahmad, Babu Muhammad Ishaque, Master Asif, Akhtar and Muhammad Nawaz petitioners is confirmed while Muhammad Aslam petitioner in Criminal Miscellaneous No,5357/B of 1997 is required to execute a bail bond in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the learned trial Court.
16. The learned trial Court is directed to dispose of the case within three months. Compliance shall be reported to this Court through Additional Registrar (Judicial).
17. The above applications are disposed of accordingly.