FAZAL-UR-REHMAN vs KHALID and 2 others

' SYED YAHYA ZAHID GILANI, J.---Fazlur Rehman complainant-petitioner is the father of Sanaullah whose Qatl-e-Amd has been booked in F.I.R. No,37 dated 4-2-2009 of Police Station University, D.I.Khan, under sections 302/324/34, P.P.C. He is aggrieved by the order of Mr. Irshad Ahmad Khan, Judicial Magistrate-I, D.I.Khan dated 31-3-2009 and Syed Zamurd Shah, Additional Sessions Judge- I, D.I.Khan dated 6-5-2009 because the A earlier released accused-respondents Nos.1 and 2 nominated by him in his statement under section 164, Cr.P.C. Without giving him notice and affording him opportunity of being heard and the latter did not cancel their bail in spite of this glaring legal lacuna.

2. I have heard arguments of learned counsel for complainant-petitioner and the State Counsel.

Accused-respondents were heard in person because they stated that they do not intend to engage counsel.

3. Since the introduction and implementation of Islamic concept of dispensation of Justice in criminal cases, wherein hurt Qatl-e-Atnd is involved, the right of compensation being a personal right of the victim or descendants of deceased victim, the superior Courts are of the consistent view that they have a vested right to be heard before an order favour also to an accused is passed.

The theory was originally propounded by Mr. Justice IB Muhammad Bashir Khan Jehangiri, in the case of Muhammad Ashraf v. Duarriyaman and another (PLD 1993 Peshawar 151) and subsequently this view was adhered to in different judgments, like in the case of Muhammad Shafiq v.

Muhammad Mir Khan (2001 PCr.LJ 968 Peshawar) wherein the short but leading judgment delivered by this Court is reproduced below:-- "Cancellation of bail granted to respondents, namely, Muhammad Mir Khan, Shafiq-ur-Rehman and Sher Zaman in case F.I.R. No,29, dated 12-2-2003 of Police Station Naurang under section 302/34, P.P.C, is sought mainly on the ground that the learned Sessions Judge, Lakki has granted bail to the respondents without notice to the complainant.

' Perusal of the record does support the grievance of the petitioner. It is by now well-settled that in murder/hurt cases notice is to be given to the aggrieved/complainant party even at bail stage.

Long ago in case of Abdur Rahim v. Khan Faraz and others dated 6-4-2002 the bail granted by the same B Sessions Judge, Lakki was cancelled on the ground that notice was not given to the complainant and injured party. It appears that the learned Sessions Judge is still following his own notion and has turned blind eye to the settled proposition of law. The bail granted to the respondents is hereby recalled and the bail application submitted by them is entrusted to the learned Additional Sessions Judge, Lakki Marwat, where the learned counsel for both the parties undertake to appear on 25-10-2003 and after hearing either side should decide the case in accordance with law. The application stands accepted."

3-A. It is noted with concern that sometimes ignoring the established principles of law creates unnecessary hardship for the litigants and enlarges their agony which the Courts are bound to minimize and eliminate. In the instant case, both the Courts below have ignored the established right of legal heirs of the deceased to be heard. All the Judicial Officers should be careful and improve their legal knowledge on basic and established principles of law which are applicable in their daily routine work.

4. Without touching merits of the case, this petition is accepted, the impugned bail orders are set aside and the bail D granted to accused-respondents Nos.1 and 2 is recalled for having been granted without notice to complainant party. They are taken into custody and directed to be produced before learned Judicial Magistrate-I, D.I.Khan on 11-6-2009 where the bail application of accused-respondents shall be deemed to be pending. The learned Magistrate shall, adding father of the deceased as respondent, serve a notice on him and after extending him opportunity of being heard, shall decide the bail application within four days.

5. The Additional Registrar of this Bench is directed to circulate copy of this judgment to Sessions Judges, D.I.Khan, Bannu, Lakki Marwat and Tank for onward circulation to all the Judicial Officers working under their control, for guidance.