ZAFAR QURESHI Versus MAQSOODUL HASSAN

1. GHULAM MUJADDID, J.‑ ‑Ashiq Hussain, Akbar Ali, Bashir Ahmad and Khalid Rashid seek leave to appeal against the "order of the Divisional Bench of the Lahore High Court dated 30‑10‑1988 in Criminal Miscellaneous No. 857‑M/88 read with the earlier order of 28‑6‑1988 passed in Criminal Miscellaneous No. 1726‑B of 1988".

2. Muhammad Hussain son of Abdullah lodged report on 9‑2‑1986 at 10.10 a.m. at Police Station, Jaranwala, with regard to the double. murder of M. Sharif and Mukhtar Ahmad and causing injuries to M. Hussain.

3. The report was under section 302/307/404/325/148/149/109, P.P:C: It was recorded by S.H.O. Raja M. Fayyaz.

4. Seven persons were named in the F.I.R.‑‑four petitioners and ‑three others, namely, Mukhtar Ahmad, Talib Hussain and Ashiq Ali.

5. After the completion of investigation, challan was submitted in the Court of Sessions Judge, Faisalabad. 1t was marked to M.A. Shahid Siddiqui, Additional Sessions Judge, Faisalabad, for trial. .

6. The accused moved an application for transfer of the case. That application was allowed by the Sessions Judge. The case was transferred ;to. the Court of Farman Ali Khan, Additional Sessions Judge, Faisalabad. Subsequently the Provincial Government entrusted the case to the Special Court for Speedy Trials, Faisalabad.

7. On 15‑5‑1988 the petitioners moved an application (Criminal Miscellaneous No. 1726‑B/88) in the Lahore High Court for bail on the statutory ground of delay in concluding the trial. The bail petition was heard by a Division Bench who by order dated 28‑6‑1988 dismissed the same. The aforesaid order was not challenged then.

8. Thereafter, the petitioners filed an application under section 561‑A, Cr.P.C. The heading of the application is as under:‑

9. "...under section 561‑A of the Cr.P.C. (V of 1898) praying that the order dated 28‑6‑1988 be corrected and clarified and a proper formal order be written:"

10. Number of grounds were taken in the application. All were considered by the learned Division Bench. The application was dismissed by order dated 30‑10‑1988 which has been impugned in this petition alongwith the previous order dated 28‑6‑1988 whereby the request for bail was refused.

11. Stance of the petitioners before this Court is the same as it was before the High Court as is evident from the very first ground which is as follows‑

12. "The only point involved is the question of construction of third proviso to section 497, Cr.P.C. (V of 1898). Proviso 3 to section 497; Cr.P.C. reads as follows:‑

13. ..........

14. Before dealing with the submissions of the learned counsel it is necessary to refer to the dates although all these had been mentioned in the order dated 30-10‑1988 yet it is essential to mention these again at the cost of repetition because it is in the light of these dates that it is to be determined as to whether the third proviso to section 497; Cr.P.C. can be pressed into service for the benefit of the petitioners.

15. Occurrence took place on 9‑2‑1986.

16. Petitioners Asluq Hussain, Akbar Ali, Bashir Ahmad were arrested on 28‑2‑1986 and Khalid Rashid on 22‑8‑1986.

17. Challan was submitted in the Court of Sessions Judge, Faisalabad, on 6‑10‑1987 who sent the case to the Court of M.A. Shahid Siddiqui, Additional Sessions Judge, Faisalabad, for trial.

18. The accused were required to appear before the trial Court on 8‑10‑1987. They appeared. Case was adjourned to 28‑10‑1987 and then to 5‑11‑1987. This adjournment was given to enable the accused to arrange for their representation.

19. Then the case was adjourned to 7‑11‑1987. On that date the Additional Sessions Judge was told by the accused that they had moved for transfer of the case from his Court.

20. Proceedings were accordingly adjourned to 23‑11‑1987

21. Case was transferred or, 15‑12‑1987 from the Court of M.A. Shahid Siddiqui to that of Farman Ali Khan, Additional Sessions Judge, Faisalabad.

22. Nothing happened between 20-10‑1987 to 28‑1‑1988. This was on account of the fact that one of the petitioners Akbar Ali was appearing in B.A Examination.

23. By order dated 27‑2‑1988 of the provincial Government, the case was entrusted to the Special Court for Speedy Trials, Faisalabad.

24. The petitioners challenged the order of the Provincial Government by Means of a Constitution petition (W.P. No. 1005/88).

25. Preliminary hearing took place on 28‑2‑1988 when the High Court directed the Special Court not to pass any final order adverse to the petitioners. Proceeding.; were accordingly stayed.

26. In the meanwhile Special Court ex min thirteen witnesses This happened between 5‑3‑1988 to 23‑4‑1988 . . ..

27. The Constitution petition stands admitted. Hearing has taken place. The petition is still pending. It is in the light of these dates and developments that third proviso to section 497, Cr.P.C. is to be construed. The proviso is as under:‑

28. Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail:‑

(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or

(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."

29. As already observed, the bail application of the petitioners was dismissed on 28‑6‑1988 with the following observation:‑

30. "In the circumstances, keeping in view the delays attributable to the accused/petitioners, they are not entitled to be released on bail on the statutory ground enacted in third proviso to section 497(1), Cr.P.C Consequently, this petition is dismissed."

31. Learned counsel for the petitioners contended of the petitioners is fully covered by the proviso referred to above.

32. He argued that the delay in the trial has not been occasioned by an act or omission of the accused nor by any other person acting on their behalf. He further submitted that it could not be attributed to the petitioners.

33. It was contended that the petitioners had every right to challenge the order of the Provincial Government. Similarly the petitioners could not be penalised on account of the fact that one of the accused appeared in BA. examination.

34. Learned counsel then submitted that on one or two occasions some of the accused were not brought from the judicial lock up. The petitioners were not to be held responsible for that.

35. We have also heard learned counsel for the State as well as the complainant. They supported the impugned orders.

36. We have considered these points. The first question is whether after the rejection of the bail petition, request for bail could be repeated by invoking the provisions of section 561‑A, Cr.P.C.

37. Undoubtedly, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. But this does not mean that when the High Court has been moved under a specific section for a specific purpose, which in the instant case is section 497, Cr.P.C., and the relief prayed for is refused then the party aggrieved can invoke the jurisdiction of the High Court under section 561‑A, Cr.P.C. In the case of Gulzar Hussain Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335) which has been referred to in the judgment of the Lahore High Court, this Court examined the proposition as to when the inherent powers of the High Court can he invoked. The, relevant portion is as under‑‑ .

38. "I am conscious of the fact that general principle of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it wit: not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561‑A, Cr.P.C. can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does not cause injury to any of the parties. This is an inherent power of the Court and has been reserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which arc not governed by sections 369, 424 and 430, Cr.P.C. with a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases."

39. Learned Division Bench of the High Court rightly observed that the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530) was not applicable. It was the West Pakistan Urban Rent Restriction Ordinance which was under examination with special reference to the word "default". The principle laid down is not attracted to the instant case.

40. The bail application of the petitioners had been dismissed by a proper and legal order. Needless to observe that there was no bar for the petitioner file a fresh application in case there were new grounds.

41. In a case like this the High Court was not obliged to entertain such a frivolous petition. The learned Judges of the High Court in spite of certain obnoxious averments in the petition acted with remarkable restraint and showed indulgence to the counsel. The learned Bench dealt with each and every averment of the counsel and repelled the same by cogent and sound reasons.

42. It is a cardinal principle of interpretation of statutes that the words have to be given their ordinary meanings. It is only in extraordinary circumstances when this principle is modified. Such circumstances do not exist in the present case.

43. The language of the proviso is clear. The learned Division Bench correctly construed the aforesaid provision of law and it was rightly observed "We cannot read in the proviso something which the legislature has not provided. The intention or motive of the accused is not required to be gone into".

44. The following passage from the Construction of Statutes by Earl T. Crawford at page 460, Chapter XXIII, Section 240, dealing with Criminal and Penal Statutes, Generally, is relevant:‑

45. "Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted."

46. For foregoing reasons we are of the view that the case of the petitioners does not fall within the ambit of the aforesaid proviso to section 497, Cr.P.C. The D delay is not of the type which entitles the petitioners to the concession of bail as a matter of right.

47. The High Court was right in declining the bail on both the occasions. There is no merit in this petition for leave to appeal which is hereby dismissed.

48. M‑A.K./A‑394/S Petition dismissed.