SHOUKAT ALI QURESHI vs THE STATE and another
The petitioner sought pre-arrest bail in respect of offences under sections 353, 337-H(ii), and 186/34 of the Pakistan Penal Code 1860, which are bailable according to Schedule-II of the Code of Criminal Procedure 1898. The Additional Sessions Judge dismissed the bail application by erroneously discussing the facts of a separate non-bailable FIR, failing to address the bailable offences for which bail was actually sought. The Islamabad High Court held that passing such perverse orders in bailable matters is an arbitrary exercise of authority and contrary to law. The Court set aside the impugned order and directed the Additional Sessions Judge to decide the bail petition afresh in accordance with law, keeping in view the provisions of sections 496 and 498 of the Code of Criminal Procedure 1898. The principle laid down is that judicial officers must exercise their authority within the confines of the law, carefully distinguishing case facts, and must not compel accused persons in bailable offences to unnecessarily approach superior courts for relief.
- Whether an order passed by a lower court mixing up facts of different cases in bailable offences is sustainable?
- Can an accused charged with bailable offences be refused bail due to a misconception of facts by the trial court?
- What is the duty of judicial officers while adjudicating bail petitions relating to bailable offences?
- Section 353, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 186, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 496, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
ORDER
' SHAUKAT AZIZ SIDDIQUI, J.---Admittedly, offences under sections 353, 337-H(ii), 186/34, P.P.C. In which petitioner sought bail before arrest according to Schedule-II of Cr.P.C. Are bailable.
2. Through impugned order, learned ASJ declined the request by discussing case registered vide F.I.R.No,1106 dated 27-10-2011, offence under sections 324-, 427, 148, 149 and 337-F(ii), P.P.C. And not a single word/reason about the F.I.R. In which bail was sought. Apparently, this was arbitrary exercise of authority, against the command of law and dictum laid down by the Hon'ble Supreme Court in case titled "Muhammad Ayub v. Muhammad Yaqoob and others reported as PLD 1966, Supreme Court 1003. Therefore in order to confront and to know the reasons of departure, this court constrained to call in person learned ASJ who put appearance and stated that impugned order was passed B under some misconception which is result of inadvertence. Learned ASJ assured that he shall be careful in future.
3. This court reminded the learned ASJ of his sacred duty of dispensation of justice and responsibilities towards judicial system, which is the only hope of people of Pakistan. As, such type of orders bring chagrin, despondency, disappointment, dismay and dejection to the ordinary litigants. In the arena of judicial activism, it is unimaginable and undreamed of that, any accused of a bailable offence would be compelled to approach the High Court for a relief in which even S.H.O. Can take bond. These perverse orders burden the litigant with heavy costs as unfortunately, even filing of any petition before High Court is not inexpensive. The judicial officers are custodian of the rights of the people rule of law and administration of justice, therefore, it is expected from them that, while discharging their sacred duty of dispensation of justice they would adhere to the provisions of law and no consideration, relation, liking or disliking would influence or prevail upon them. It really is heart breaking that orders like impugned before this court raises eye brows about the Institution of judiciary and bring question mark about the integrity of judicial officer, as well. The only course through which such type of criticism can be avoided is that judicial officer must exercise his authority within the four corners of law and not by adopting any novel procedure.
4. Although the explanation advanced by learned ASJ is unsatisfactory, still this court by showing grace, declares the impugned order, as result of some misunderstanding amalgamation of facts of two different cases and not of any other consideration.
5. In this view of the matter, impugned order dated 7-2-2012, is set aside. Petition for pre-arrest bail shall deem to be pending before learned ASJ, Islamabad, who is directed to pass the order afresh, in accordance with law. It is expected that learned ASJ will apply his judicial mind and by adhering to provisions of sections 496, 498, Cr.P.C. Speaking order would be passed. The petitioner is directed to appear before learned ASJ, Islamabad on 21-2-2012.
6. Office is directed to deliver the copy of this order to both the learned Sessions Judges East and West Divisions ICT for their perusal as well as their subordinate judicial officers.