NASRULLAH KHAN vs THE STATE

ORDER

' SYED SAJJAD HUSSAIN SHAH, J.--- Petitioners Nasrullah Khan (in Criminal Miscellaneous No,4015/B of 2006) and petitioners Shera, Nasrullah and Yaseen (in Criminal Miscellaneous No,4018/B of 2006) have sought pre-arrest bail in case F.I.R. No,318 of 2005, dated 8-7-2005 under sections 302/324/452/148/149, P.P.C. Registered with Police Station Sukheki Mandi, District Hafizabad.

2. During the investigation, the petitioners were found innocent and placed in Column No,2 of the report under section 173, Cr.P.C.

3. After submission of the report under section 173, Cr.P.C. The trial Court summoned the present petitioners vide order dated 15-2-2006. In response to summons, they appeared before the trial Court and filed pre-arrest bail petition which was dismissed vide order dated 6-4-2006.

4. It is contended by the learned counsel for the petitioners that the petitioners having been summoned, the only course opened to the learned Additional Sessions Judge was to proceed under section 91, Cr.P.C. Requiring the petitioners to execute bonds with or without surety for their appearance in the Court. It is contended that the bail application before the learned Additional Sessions Judge was made when the petitioners appeared in response to the summons issued, therefore, the application for bail after arrest and nor for pre-arrest bail and the observation of the learned Sessions Judge that it was not a fit case for bail before arrest is misconceived. The learned counsel appearing on behalf of the State do not oppose the prayer for confirmation of the bail. It is submitted that the petitioners appeared before the learned Additional Sessions Judge in response to the summons, therefore, he was required to proceed under section 91, Cr.P.C. And his observations that the application made by the petitioner for pre-arrest bail is misconceived.

5. Arguments heard. Record perused.

6. The learned Additional Sessions Judge, Pindi Bhatian vide his order, dated 15-2-2006 summoned the petitioner to face the trial. Section 91, Cr.P.C. Laid down that when any person for whose appearance or arrest the Presiding Officer of any Court is empowered to issue summons or warrant is present in such Court, such Officer may require such person to execute a bond with or without surety for his appearance in such Court. Under this section a bond with or without surety may be taken from the accused person or from a witness for his appearance. The learned Additional Sessions Judge was empowered to issue warrants or summons for causing the accused to be brought 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 the Court. This section also empowers the Court to commit the person present in Court to custody if he fails to give surety for his attendance. In the present case, the petitioners were never asked to execute bonds nor they had failed to do so.

7. The learned lower Court erroneously held that the offence for which the petitioners were summoned falls under the prohibitory clause. As the process is issued to the accused when the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceedings. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of offence punished with death or imprisonment for life or imprisonment for ten years.

8. In these circumstances, both the said petitions are accepted and ad interim pre-arrest bail already granted to the petitioners vide order, dated 23-5-2006 is confirmed.