2017 PLP 1296 (YLR)

ISHTIAQ IBRAHIM, J.

Barkatullah petitioner invoked the jurisdiction of this Court under section 561-A of the Code of Criminal Procedure, with a prayer that:-- "On acceptance of the instant Quashment petition, the impugned orders of the learned Additional Sessions Judge No.IV, Lakki Marwat/learned trial Court dated 30.4.2016 and 06.5.2016, may kindly be quashed and the accused/ petitioner may kindly be released on bail on the basis of bail bonds already furnished by him vide order sheet No.02 dated 19.9.2015, or he may kindly be released on the fresh bail bonds as deem it proper by this august Court".

2. Complainant/ respondent namely Yar Muhammad charged the petitioner along with four others in case FIR No. 147 dated 27.4.2015 under sections 302/324/ 427/148/149, P.P.C. registered at Police Station Pezu, Lakki Marwat.

3. Story of the prosecution case, spelt out from the FIR is that on 27.4.2015 at 09.15 A.M., complainant along with his sons Inamullah and Ghulam Muhammad after harvesting wheat crop were coming to their house. When they reached to a path leading from Azar Khel to Hayat Khel within the limits of Azar Khel, they spotted a motorcar which was being driven by Abdul Qayum, his co-villager. Ghulam Muhammad signaled him for stoppage. In the said motorcar Abdul Qayum and his sons Muhammad Naveed, Muhammad Ibrar, Muhammad Rizwan and his wife Hukam Bibi, and a minor Naz Bibi were boarded. Ghulam Muhammad Boarded in the vehicle while the complainant and his son Inamullah proceeded on foot. When the motorcar went to a some distance, at about 0945 hours from the wheat crop accused Sherdil, Muhammad Asif, Tauseef alias Qalandar, Barkatullah and Faiz Dil armed with Kalashnikovs were standing and after Lalkara all the five persons started firing at Ghulam Muhammad and the motorcar. As a result of which Ghulam Muhammad, Muhammad Naveed, Muhammad Ibrar, Muhammad Rizwan, Mst. Hukam Bibi were hit and sustained injuries. Thereafter all the five accused made firing at the complainant and his son Inamullah with the intention to commit his murder, as a result of which his son Inamullah was hit and fell on the ground while the complainant took shelter in a wheat crop. When he attended the injured, Ghulam Muhammad, Inamullah and Muhammad Rizwan were succumbed to the injuries. Motive for the offence was stated to be previous blood feud.

4. Petitioner appeared for bail before arrest on 04.5.2015 and simultaneously moved an application to the concerned police regarding his innocence and verification of his plea of alibi. Subsequently petitioner withdrew his bail before arrest application as he was placed in column No.2 of challan by the local police; bond was also taken from him by concerned investigation officer.

5. Complainant assailed the said action of the police through Writ Petition No.431-B/2015, during the pendency of the above mentioned writ petition. Trial of the case commenced. On 19.9.2015 petitioner was summoned by the trial Court, directed him to execute bonds to the tune of Rs.80,000/-, which he did accordingly. Charge was also framed on 05.10.2015. Due to the changed scenario writ petition mentioned above was disposed of being infructuous on 24.11.2015.

6. On 26.11.2015 complainant filed bail cancellation application under section 497(5), Cr.P.C., which was allowed, vide impugned order dated 30.04.2016 petitioner was taken into custody, subsequently his post arrest bail prayer was also turned down vide impugned order dated 06.05.2016. Hence, the instant quashment petition.

7. I have heard valuable arguments for the parties as well as A.A.G. for State and perused the record with their valuable assistance.

8. Form of challan is appended with chapter-25 of the Police Rules, which is reproduced below. Form No. 25-56(1) CHARGE SHEET District Charge Sheet No.______ dated _____20 Police Station ______in first information No.______ Dated_______ 1 2 3 4 Name, Address and occupation of complainant or information Name and addresses of accused persons not sent up for trial, whether arrested or not arrest, including absconders (show absconders in red ink) Names and addresses of accused persons sent for trial In custody or On bail recogni- zance 5 6 7 Property (including weapons) found, with particulars of where, when and by whom, found and whether forwarded to Magistrate Name and addresses of witnesses Charge or information; Name and offence and circumstances connected with it, in concise detail, and under what section of the law charged. A.M. 20 Dispatched at____on P.M. Signature of investigating officer. Column No.2 is meant for those accused who are not sent for trial which includes the names of absconding accused which are to be written in red ink, while those accused, like the present petitioner who according to prosecution are innocent mentioned with blue or black ink.

9. When challan is submitted to the Court, trial Court takes cognizance of the case, it is within competence of the trial Court to summon accused and proceed with case in the same manner as to those of the accused who has been sent for trial, if the trial Court desires. Before formal indictment accused is to be directed to execute bond with or without sureties under section 91, Cr.P.C. Upon his failure he can be taken into custody to face the trial.

10. In the instant case, the petitioner was summoned by the trial Court and was directed to execute a bond in the sum of Rs.80,000/- which he did accordingly. Thereafter, complainant filed a cancellation application under section 497(5), Cr.P.C. which was allowed vide impugned order. As the bail bond sought from the accused was not under section 497, (Cr.P.C.) rather it was under section 91, Cr.P.C., therefore, the learned trial Court had erred, while ordering the cancellation of bail under section 497(5), Cr.P.Code.

11. The learned trial court, in his impugned order relied upon the judgment of the apex Court rendered in case titled "Luqman Ali (2010 SCMR 611), but with profound respect that has already declared as judgment per incuriam by the Five Members Bench in case titled "Sarwar and others v. The State and others" (2014 SCMR 1762). For convenience relevant paragraph is reproduced below:-- "

23. After carefully attending to the relevant statutory provisions of the Code of Criminal Procedure and after minutely examining all the precedent cases detailed above we may straightaway observe, and we observe so with great respect, that in the cases of Noor Nabi (supra) and Luqman Ali (supra) as well as in all the other cases falling in the second category of cases mentioned above different High Courts and even this Court had completely omitted from consideration that a contrary view in respect of the very issue under discussion had already been expressed by this Court in the cases of Reham Dad (supra) and Syed Muhammad Firdaus (supra) and in those cases the law declared by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah (supra) had expressly been upheld and approvingly referred to respectively by different 3- member Benches of this Court. It is, thus, obvious that in the case of Noor Nabi the High Court of Sindh, Karachi could not take a view of the issue different from that already expressed by this Court. The judgment in the case of Luqman Ali was authored by the same Honourable Judge who was the author of the judgment in the case of Noor Nabi and in the case of Luqman Ali too the earlier two judgments of this Court on the subject had completely been ignored. This oversight, if not a lacuna, in the judgments rendered in the cases of Noor Nabi and Luqman Ali and also in all the other cases wherein the ratio of the said two cases had been followed had substantially denuded all such judgments of their authoritative force besides completely impairing their persuasive value and it may be said with respect that the said judgments were rendered per incuriam. "

12. Once the accused has executed bail bond with trial Court, his subsequent arrest while cancelling his previous order under section 497(5), Cr.P.C. is not permissible, until and unless order of his placement in column No.2 of challan is not set at naught by a competent forum. Wisdom is derived from the case titled "Muhammad Ilyas v. Ijaz Ahmad Butt and another" (1992 SCMR 1857), wherein it is held that:-- "

4. We propose to dispose of this petition on the short ground that respondent No.1 Ijaz Ahmed Butt is not an accused person so far as his name is not included in the challan in the column of accused persons but appears in column No.2 of the Challan because investigating agency was short of material against him. He himself on his own approached the trial Court for bail and on failure filed application in the High Court for that purpose. It appears that so far neither police has taken any steps to arrest him because for doing so police has to show that sufficient material is available against him and his name for that reason is to be taken out from column No.2 and put in the column of accused persons who are not in custody. Similarly trial Court has not taken any steps to show that respondent No.1 Ijaz Ahmed Butt was being treated as accused person. Trial Court declined to grant bail to him on technical grounds, inter alia that report submitted under section 173, Cr.P.C. was contradictory."

13. For the reasons discussed above and taking guidance from the judgments of august Supreme Court, this court allows the quashment petition and quash the impugned bail cancellation order dated 30.04.2016 and restore the order dated 19.09.2015 of the learned trial Court. JK/45/P Petition allowed.