2002 PLP 1841 (YLR)

(b) Act of Court

Principle

An act or omission of a Court is not to prejudice the case of any party. (c) Criminal Procedure Code (V of 1898)

Ss. 497/498

Bail

Formal application not necessary

Provisions of Ss.497 & 498, Cr. P. C. do not prescribe any formal mode of admitting an accused person to bail nor a formal application in that regard is presented. Ch. Shahid Tabassam for Petitioner. Through this petition Sardar Ali petitioner-complainant has called in question the order, dated 18-3-2002 passed by the learned Sessions Judge, Sargodha whereby respondent No.1 was admitted to post-arrest bail in case F.I.R. No. 10 registered at Police Station Bhagtanwala, District Sargodha on 14-1-1999 for offences under sections 392/394/411, P.P.C. In support of this petition it has been argued by learned counsel for the petitioner that the matter of pre-arrest bail of respondent No. 1 was dealt with by a learned Additional Sessions Judge, Sargodha on 7-2-2002 and, therefore, the matter of post-arrest bail of respondent No. 1 could not be handled by the learned Sessions Judge, Sargodha as the same violated the principle contained in Zubair's case (PLD 1986 SC 173). In this regard the learned counsel for the petitioner has placed reliance upon the case of Muhammad Taj v. Muhammad Akhtar and another (1997 SCMR 1336). It has also been argued that no formal application had been filed by respondent No. 1 for her post-arrest bail before the Court of Session,. Sargodha and, therefore, she could not, be admitted to bail by the learned Sessions Judge, Sargodha. It has further been argued that while enlarging respondent No. 1 on post-arrest bail the learned Sessions Judge, Sargodha purported to act as Director Enforcement of Human Rights but, according to the learned counsel for the petitioner, the learned Sessions Judge had no such capacity under any law. It has lastly been maintained that respondent No.1 is not entitled to continue enjoyment of post-arrest bail as after her release on bail she has misused the said concession by extending threats to the petitioner and the other members of the complainant party.

2. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed that while admitting respondent No. 1 to post-arrest bail the learned Sessions Judge, Sargodha had observed that respondent No.1 had not been nominated in the F.I.R. registered on 14-1-1999 and her name had surfaced in this case for the first time after more than three years i.e. on 24-1-2002 through supplementary statements of the complainant and the other witnesses according to which respondent No.1 and her co-accused had made a joint extra judicial confession which surely was inadmissible in evidence. The alleged recovery of Rs.400 from, respondent No.1 did not stand connected with the alleged offences as the denomination as well as the numbers of the currency notes taken away by the culprits during the alleged incident had never been specified in the F.I.R. According to the learned Sessions Judge respondent No.1 was a lady with a suckling child and there was no legally admissible evidence available on the record against her so far. In the circumstances of this case mentioned by the learned Sessions Judge, Sargodha in his order, dated 18-3-2002 I have failed to take any legitimate exception to the reasons prevailing with the learned Sessions Judge, Sargodha for admitting respondent No.1 to post-arrest bail in a case of this nature. It is trite that consideration for grant of bail and those for its cancellation are entirely different. The allegation regarding misuse or abuse of the concession of bail by respondent No. 1 has not been established or substantiated before this Court through any independent material.

3. The learned Sessions Judge, Sargodha had apparently acted as Director Enforcement of Human Rights while admitting respondent No. 1 to post-arrest bail and the said capacity of the learned Sessions Judge, Sargodha had its roots in the directions issued by the Hon'ble Supreme Court of Pakistan under the famous Quetta Declaration. As regards the alleged violation of the principle contained in the above mentioned Zubair's case suffice it to observe that there is no independent proof available on the present record to the effect that at the time of admission of respondent No. 1 to post-arrest bail by the learned Sessions Judge, Sargodha the learned Additional Sessions Judge, Sargodha who had previously refused pre-arrest bail to respondent No.1 was available and working at Sargodha. Even otherwise if the learned Sessions Judge had not kept the said principle contained in Zubair's case in mind at the time of admission of respondent No.1 to post-arrest bail then the blame in that regard must lie where it rests and respondent No.1 cannot be visited with a penalty for a mistake committed by the learned Sessions Judge. It is settled law that an act or omission of a `Court is not to prejudice the case of any party. Adverting to the contention of the learned counsel for the petitioner that there was no formal application presented by respondent No.1 for her post-arrest bail before the learned Sessions Judge, Sargodha it may be observed that the provisions of sections 497 and 498; Cr.P.C. do not prescribe any formal mode of admitting an accused person to bail and a formal application in that regard is surely not mentioned in the said provisions. In the absence of a formal application for bail a sine qua non for admission of an accused person to bail under sections 497 and 498, Cr.P.C: I am not ready to cancel an accused person's bail on that ground alone, especially when such an accused person had apparently a good case of bail on merits.

4. For what has been discussed above I have failed to find any occasion for interference with the exercise of jurisdiction and discretion in the matter by the learned Sessions Judge, Sargodha in admitting respondent No. 1 to post-arrest bail and this petition is, therefore, dismissed in limine. N.H.Q./S-431/L Petition dismissed.