MAZHAR HUSSAIN SHAH vs THE STATE-

ORDER

Syed Mazhar Hussain Shah, Head Constable, Incharge Proclaimed Offenders Staff, Gujrat, Shafaqat Hussain Shah, Nazar Muhammad, Muhammad Akram, Muhammad Ihsan, Muhammad Azam, Rukhsar Ahmad, Muhammad Iqbal and Abid Hussain constables of the aforesaid Staff, Akhtar Muhammad, Mian Khan, Muhammad Khan, Ata Muhammad, Zafar Iqbal, Dilawar, Bhola and Fazal Dad, are accused in a complaint-case under sections 120-B, 148, 302 and 109/149, P.P.C., filed by Rehim Dad complainant (respondent No. 1 herein). They have moved this petition for bail. In the complaint, it was alleged that in pursuance of a conspiracy the petitioners committed the murders of Muhammad Azam, Muhammad Mazhar and Nur Hussain on 23-12-1983. The complaint was filed on 18-7-1984. After recording the statement of the complainant and the evidence at the preliminary stage, the learned Sessions Judge issued process against the petitioners, vide order, dated 17-7-1985. In response to the summonses issued by the learned Sessions Judge, the petitioners appeared in Court and moved applications for bail but the same were dismissed by a single order, dated 24-10-1985, with the observation that it was not a fit case for bail before arrest.

2. Learned counsel for the petitioners contends that the complaint is false and the fact of the matter is that all the aforementioned three persons lost their lives in a police-encounter and petitioner No. 1 who is the incharge of the Proclaimed Offenders Staff, had lodged a report on the very night of occurrence at Police Station Saddar Gujrat. It is submitted that judicial enquiry was held into this matter firstly by Mr. Muhammad Muss, Magistrate First Class, Gujrat, who submitted a report that the police raiding party was at fault and a case should be registered against them but later on another judicial enquiry was held by Assistant Commissioner, Mandi Baha-ud-Din and he exonerated the police party. The learned counsel contends that the petitioners having been summoned under section 204, Cr.P.C., the only course open to the learned Sessions Judge was to proceed under section 91, Cr.P.C. Requiring the petitioners to execute bonds with or without sureties for heir appearance in Court. It is contended that the bail application before the Sessions Judge was made when the petitioners appeared before him in response to the summons issued, therefore, the application was for bail after arrest and not 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. It is submitted that petitioners Nos. 10 to 17 are admittedly relatives of Nasru Chairman for whose murder a case under section 302/34, P.P.C., was registered against Muhammad Azam deceased son of the complainant and they have been maliciously implicated to set up a counter-case.

Lastly, it is submitted that in any case the existence of "sufficient ground for proceeding" in a complaint case (section 204, Cr.P.C.) cannot be equated with the appearance of reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

The learned Assistant Advocate-General does not oppose the prayer for the confirmation of the bail. He submits that the petitioners had appeared before the learned Sessions Judge in response to the summons, therefore, he was required to proceed under section 91 of the Criminal Procedure Code and his observation that, the application made by the petitioners was for pre-arrest bail, is misconceived.

Learned counsel for the respondent contends that a Court of competent jurisdiction has found a prima facie case under section 302/149, P.P.C., against the petitioners which falls within the prohibitory clause of section 497, Cr.P.C., therefore, they are not entitled to the concession of bail.

3. Section 204, Cr.P.C. Provides that if the Court taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, it shall issue a summons if the case appears to be one in which, according to the fourth column of the Second Schedule, summons should issue in the first instance but if the case appears to be, one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons, for causing the accused to be brought or to appear before it. According to fourth column a warrant should ordinarily issue in the first instance in a case under section 302, P.P.C. But in this case the Court chose to issue a summons. Section 91, Cr.P.C. Lays down that 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 office may require such person to execute a bond, with or without sureties, for his appearance in such Court. Under this section a bond with or without sureties may be taken from an accused person or from a witness for his appearance. The learned Sessions Judge was empowered to issue warrant or summons for causing the accused to be brought to 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 Court. This section by necessary implication also empowers the Court to commit the person present in Court to custody if ha fails to give security for his attendance. It is nobody's case that the petitioners were asked to execute bond and they had failed to do so.

Process is issued to the accused when the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. In the circumstances, I feel inclined to the view that the petitioners are entitled to bail. The interim bail is, therefore, confirmed.