2024 P Cr (PLP)

MUHAMMAD AMJAD RAFIQ, J.

Through this criminal revision, petitioner has called in question the order dated 15.04.2020, passed by the learned Additional Sessions Judge, Mandi Bahauddin, in case FIR No. 72/2020 under sections 337-A(iii),337-L(2), 447, 511, 427, 147, 149, P.P.C. Police Station Civil Line, District Mandi Bahuddin. Whereby, while declining post arrest bail to the petitioner on merits, he was ordered to be released on bail by extending benefit of section 337-N(2), P.P.C. subject to deposit of 'arsh' amounting to Rs.2,35,000/- and also furnishing of bail bond in sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial court.

2. Heard. Record perused.

3. Learned counsel for the petitioner had a stance that petitioner asserted right of bail post arrest in a low voice before the court of learned Additional Sessions Judge without putting 'nolo contendere' but the order was passed by imposing a condition to deposit amount of requisite arsh for injury attributed to him if wishes to be released on bail; therefore, he after depositing the amount has come out to contest such conditional order of release on the ground that law does not permit to impose any condition for releasing the accused on bail. It was vociferous presentation by the learned counsel for the respondent/ complainant with flow of arguments that it is permissible to pass such order if the circumstances demand and placed reliance on cases reported as "Haji Maa Din and another v. The State" (1998 SCMR 1528); "Ali Akhtar v. The State and another" (2013 PCr.LJ 487, Lahore); further stated that petitioner cannot approbate and reprobate in one sigh, to enjoy as well as to contest the conditional release, nor he can back out from his earlier stance and is estopped by his conduct; reliance was on "Attaullah v. Abdur Razaq and another" (PLD 2002 Supreme Court 534); "The State v. Muhammad Umar alias Chotoo" (2003 PCr.LJ 216). In the judgment referred above 2013 PCr.LJ 487, the court has directed to deposit the amount of arsh conditional to release of petitioner but judgment referred above as 1998 SCMR 1528 shows that Honourable Supreme Court on the request of petitioners therein to waive the payment of arsh, has allowed the bail without imposing condition to deposit arsh amount but here in this case no such request was made. Petitioner has once conceded the conditional order and after deposit of arsh amount stood released on bail, his challenge thereafter is beyond comprehension. Learned counsel for the petitioner, however has not submitted arguments that such condition was illegal but the main stay was that conditional order of bail is prohibited under the law.

4. Attended both the contentions, it is the precedent of this court passed in case reported as "Ali Muhammad v. The State" (PLD 2009 Lahore 312) that if an accused put "nolo contendere" (no contest), he can be released on bail if volunteers to deposit the amount of arsh/daman and the criminal process shall follow accordingly; but if such an offer is not tendered by the accused, then as to whether court while deciding bail petition of the accused can impose any condition like deposit of arsh amount etc. is the main question to be resolved in this case. In this respect, though Chapter XXXIX of Code of Criminal Procedure, 1898 relating to subject of bail, does not contain any such provision but Chapter XXIX of Cr.P.C. does have a provision though in the form of remission or suspension of sentence, yet it finds an appended provision to the subject in hand which so far has not been attended to in any court precedent as told to the court. It is the section 401 of Cr.P.C. which is reproduced as under:-

401. Power to suspend or remit sentences: (1) When any person has been sentenced to punishment of an offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. [Provided that the Provincial Government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the Pakistan Penal Code if an offence has been committed by him in the name or on the pretext of karokari, siyahkari or similar other customs or practice] (2) Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Provincial Government, not fulfilled, the Provincial Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (4-A) The provisions of the above subjections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property. (5) Nothing herein contained shall be deemed to interfere with the right of the President or of the Central Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment. (5-A) Where a conditional pardon is granted by the President or in virtue of any powers delegated to it by the Central Government, any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly. (6) The Provincial Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with." The above section says that Provincial Government can suspend or remit the sentence without conditions or upon any conditions which the person sentenced accepts, and the condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

5. Powers conferred upon Provincial Government under this section can also be exercised by a Criminal Court to pass any conditional order under the Code of Criminal Procedure or any other law; Sub-section (4-A) of above Section 401 in this respect is reproduced again:- "The provisions of the above subjections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property." The above subsection (4-A) was inserted in Cr.P.C. through Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923). This sub-section clearly says that a Criminal Court can pass conditional order to restrict the liberty of any person or to impose any liability upon him or his property; obviously bail is the matter which restricts the liberty of a person; therefore, if the circumstances warrant, a condition can be imposed while granting bail to an accused but such condition should not be illegal or unreasonable, it must be accepted and be one to be fulfilled by him or one independent of his will. Criminal Courts have been classified in section 6 of Cr. P.C. relevant part is as under:- Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:-- (i) Courts of Session; (ii) Courts of Magistrate. As per classification the High Court, Special Courts, Court of Sessions and Magisterial Courts are the Criminal Courts of country; therefore, they can exercise powers under above section.

6. Imposing a condition while granting bail is rooted in our system and occasionally helps the parties to avoid rigors of criminal process or facilitates them to settle their issues privately through Alternate Dispute Resolution (ADR) process, and this process is the need and demand of the time. Following judicial precedent is referred in this respect; "Shahid Sultan Durrani v. The State and others" (2021 SCMR 827). A case of dishonestly issuing a cheque, Pre-arrest bail was granted with following condition:- Accused while present in court submitted that he is ready to pay the whole disputed amount of two cheques to the complainant if some reasonable time is allowed to him. Complainant who was also present in the court submitted that he was willing to accept the said offer provided that it was clarified to the accused that concession of bail would not be available to him if he did not honour his commitment, considering the circumstances of the case, the accused shall pay whole amount of two cheques i.e. Rs.40,00,000/- (Rupees forty lac only) to the complainant within a period of one month and fifteen days and till then he shall not be arrested in the present case, however, if the accused failed to honour his commitment and did not pay the whole amount, as undertaken by him, to the complainant by the stipulated time, the restraining order shall lapse automatically and police shall be at liberty to arrest the accused." In addition and continuation following judgments also support that conditional order of bail can be passed; "Faizan Rehmat v. The State" (2021 PCr.LJ 235, GB Chief Court); "Maryam Nawaz Sharif v. Chairman NAB" (PLD 2020 Lahore 205); "Gul Muhammad v. Abdul Rashid" (2016 YLR 2845, Peshawar); "Inayat Ullah v. The State" (2015 PCr.LJ 1575, Peshawar); "Allah Nawaz v. The State" (2010 YLR 1200, Lhr); "Cool Industries (Pvt.) Ltd. through Manager v. Shafique Ahmed" (2010 MLD 435, Lhr); "Waseem Zia v. The State" (2007 YLR 249, Lhr); "Inamul Haq v. Judge, Special Court, Lahore" (PLD 2005 Lah. 79); "Muhammad Saeed v. Superintendent, Central Jail, Faisalabad" (2000 PCr.LJ 2, Lhr); "Muhammad Ayub v. Mst. Nasim Akhtar and another" (1984 PCr.LJ 160, SC AJ&K); "Fatah Muhammad v. The State" (PLD 1973 Lah. 874) and "Mst. Chan Bibi v. The State" (1993 PCr.LJ 1317 Peshawar).

7. The trend of conditional order of bail is now in vogue and provisions are available in some special laws in this respect; one of such laws is referred embodied in the form of section 21-D of Anti-Terrorism Act, 1997; relevant provision is reproduced as under; Section 21-D: (1) (2) (3) . (4) . (5) Without prejudice to any other power to impose conditions on admission to bail, the Court admitting a person to bail under this section may impose such conditions as it considers; (a) likely to result in the person's appearance at the time and place required [including very high bail sureties]; or (b) necessary in the interests of justice or for the prevention of crime [including surveillance of the person granted bail to monitor his activities and requiring him to report to the concerned police station at specified intervals as determined by the court]. (6) It shall be lawful for the person to be held in military or police protective custody in accordance with the conditions of his bail. Similarly, under Control of Narcotic Substances Act, 1997, section 51 imposes a condition of security of substantial amount for release on bail.

8. For what has been discussed above, this revision petition, having no force or merit, is dismissed. JK/B-19/L Revision dismissed.