2012 P Cr. LJ 672
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
FATEH MUHAMMAD---Petitioner
Versus
THE STATE ---Respondent
Criminal Revision No.92 of 2011, decided on 30th August, 2011.
Criminal Procedure Code (V of 1898) -.
---S. 497--- Penal Code (XLV of 1860), Ss.392/395/397---Robbery, dacoity---Bail, grant of ---
Bail granted to accused by Sessions Judge had been recalled by Additional Sessions Judge (Trial Court) ---Validity ---Observations made by Additional Sessions Judge in the impugned
order were completely based on misreading and misappreciation of evidence on record as well as the law laid down by the superior courts ---Offence against the accused although was not
compoundable, yet Sessions Judge had granted bail to accuse d on the ground of three days
delay in lodging of the F.I.R. by the complainant making the case one of further inquiry and the offence not falling within the prohibitory clause of S.497(1), Cr.P.C.---No doubt Sessions
Judge had considered the compromise ar rived at between the parties, but the same had not been
made basis for granting bail to accused ---Trial Court undoubtedly was competent to issue
notice to the parties at any stage of trial if it deemed fit and proper in view of the peculiar facts and circu mstances of the case, but not in the manner as done in the present case ---Prosecution
was supposed to produce the evidence against the accused and not of the accused---Trial Court, thus, had not rightly exercised the jurisdiction vested in it under the law ---Sessions Judge had
rightly granted bail to accused and cancellation thereof by Additional Sessions Judge was illegal, without jurisdiction and not warranted under law ---Impugned order was, therefore, set
aside and the accused was admitted to bail accord ingly.
Nisar Ahmed Alizai for Petitioner.
Abdul Ghias Nousherwani„ P.- G. for the State.
Date of hearing: 19th August, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Being aggrieved and dissatisfied by the
order dated 5- 8-2011 passed by the Additional Sessions Judge, Kalat, in Crime No.31 of 2010,
offence under section 392 read with section 34 of the P.P.C., registered at Police Station,
Soorab District Kalat, whereby the bail, already granted to the petitioner, was recalled, the
petitioner has approached this Court, seeking post -arrest bail.
2. The record is indicative of the fact that, initially, the petitioner was refused bail by the Additional Sessions Judge, Kala t by means of order dated 30th July, 2010, the operative
portion whereof speaks as under:
"Perusal of record shows that the allegation of complainant is very much clear, he has nominated the accused/applicant in F.I.R. and his allegation is corroborated by the P. Ws. Ghulam Rasool and injured Dad Muhammad and Jan Muhammad and eye -witness Noor
Muhammad as well as the learned Assistant District Attorney has added the sections 395 and 397, P.P. C. in the case, which are not bailable. Therefore, at this stage , I am not inclined to
allow the instant application, the same is hereby rejected."
The record further reflects that after framing of a formal charge, the parties to the F.I.R. entered into compromise and since the Additional Sessions Judge, Kalat was on leave and the
acting charge of the post in question was with the Sessions Judge, Kalat Division at Mastung, therefore, fresh application was filed for the purpose and the Sessions Judge vide order dated 8th September, 2010 granted bail to the petitioner, with the following observations:
"Admittedly three days delay in lodging of F.I.R. without any explanation, so as also no recovery has been effected from the possession of accused/applicant to connect him in the
commission of offence. The complainant of the case Raza Muhammad himself appeared before
the court and produced copy of compromise deed and stating that no any grievance from applicant. The case of applicant/accused does not fall within the ambit of prohibitory clause of
section 497, Cr.P.C. As such application is allowed and accused be released on bail provided he furnishes surety in the sum of Rs.100,000 (rupees one lac only) and PR bond in the like of
amount to the satisfaction of learned Judicial Magistrate, Kalat.
3. Admittedly, a look on the above order would show that the petitioner was rightly admitted on bail by the Sessions Judge, Kalat at Mastung, who, at the relevant time, was holding the additional charge of the Additional Sessions Judge, Kalat, as, admittedly, the incident was alleged to have taken place on 12th June, 2010 whereas the F.I.R. has' been lodged on 15th June, 2010 with considerable delay of about three days without any plausible explanation or reasons and that the offence mentioned in the F.I.R. does not fall within the prohibitory clause of section 497 of the Cr.P.C. It appears from the record that the said order was recalled by the Additional Sessions Judge, Kalat through impugned order, on the following grounds:
(i) The offence, in which the petitioner has been invol ved, is not compoundable, whereas he
has compromised the matter with the complainant party and kept the Court (Sessions Judge) in darkness in this behalf. '
(ii) The learned counsel intentionally and deliberately moved the second application before the Sessions Judge, Kalat at Mastung.
(iii) At initial stage, witnesses Raza Muhammad and Dad Muhammad were in attendance, but
the learned counsel Mr. Nisar Ahmed, Advocate, disclosed before the court that they effected
compromise with each other, although the offences. were not compoundable in nature and
thereafter he avoided to procure the attendance of the witnesses and he intentionally instigated the witnesses for non- appearance, which comes within the purview of tampering with the
witnesses.
(iv) A judi cial notice has also been served upon the accused Fateh Muhammad regarding non-
appearance, of the witnesses Raza Muhammad and Dad Muhammad, while on the other hand, both the witnesses appeared before the Sessions Judge, Kalat at Mastung to very the factum of compromise.
(v) Now the case is lingering on due to misconduct of counsel, who is tampering with the witnesses.
5. The aforesaid observations of the Additional Sessions Judge, Kalat are not approved and are
completely based on misreading and mis appreciation of the evidence available on record as
well as the law laid down by the superior Courts.
As regards ground (i), though the offence, in which the petitioner is involved, is not
compoundable, but the trial court has failed to consider the fact that the Sessions Judge has granted bail to the petitioner on the grounds of three days delay in lodging of the F.I.R. by the complainant, making the case of the petitioner as one of further inquiry and that the offence
does not fall within the prohibitory clause of section 497 of the Cr.P.C. Though the learned Sessions Judge had considered the compromise, but the same has not been made basis for granting bail to the petitioner.
It is not u nderstandable as to how the Additional Sessions Judge has
.made observation in
ground (ii> that the second application was filed intentionally and deliberately before the
Sessions Judge, particularly when the contents of second bail application, submitted by the
learned counsel for the .petitioner before the Sessions Judge,. specifically shows the of
rejection of his earlier bail by the Additional Sessions Judge.
As far as ground (iii) is concerned, the order -sheets maintained by the trial court show that on
2-9-2010, witnesses Raza'Muhammad and Dad Muhammad were in attendance, but their
statements could not be recorded on the request of Assistant District Attorney, as they were
not prepared. Similarly, on 6- 9-2010, .the said witnesses were present, but since the
Presiding Officer was on leave, therefore, their statements were not recorded and on
subsequent dates, the matter was adjourned for one reason or the other , but the same cannot
be termed in any manner that the learned counsel for the petitioner has tampered with the
prosecution evidence or instigated the witnesses from avoiding service or not to appear before the trial Court and, even otherwise, it is the duty of the public prosecutor to procure the attendance of the witnesses before the court and not the defence. It has nowhere been mentioned in the order -sheets that the learned counsel for the petitioner made any such
statement, therefore, the ground being taken by the trial court for rejecting the bail is out of context.
I am mindful of the fact that the trial court has the jurisdiction to issue notice at any stage of
trial to the parties, if it deems fit and proper in view of the peculiar facts and circu mstances
of the case, but not in a manner as has been done in the present case. The trial court has acted illegally and with material irregularity while issuing the notice to the accused, because, as stated above, it is the duty of the prosecution to produce the evidence against the accused and
not the accused, thus, it has misexercised the jurisdiction not vested in him.
Dealing with ground (v), suffice it to say that there is no evidence on record, which could
show that the delay has been caused in the matter due to misconduct of the learned counsel
for the petitioner.
6. Since the learned Sessions Judge, Kalat Division at Mastung has rightly exercised the jurisdiction while granting bail to the petitioner, therefore, recalling of such order by the
Additional Sessions Judge, Kalat is illegal and without jurisdiction as well as not warranted
under the law. The detention of the petitioner would serve no fruitful purpose and in case of acquittal, the period, he remained behind the bar, cannot be compensate d, as such, in such
view of the matter, impugned order dated 5th August, 1011 passed by the trial Court is set aside and the petitioner is admitted to bail against the surety already submitted before the trial Court. Similarly, the observations made by the learned trial Court against the counsel
Mr. Nisar Ahmed, Advocate, in the impugned order, are hereby expunged. The petition is, accordingly, allowed.
These are the reasons of my short order dated 19th August, 2011, announced in the open court.
N.H.Q.1 114/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.