2015 PLP 56 (SCMR)

ALI HUSSAIN QAZILBASH, J.

This appeal arises out of the order of a learned Single Judge of the Lahore High Court dated 7-12-1985 whereby the respondents were allowed bail before their arrest.

2. The facts are that Syed Mazhar Hussain Shah, Head Constable (Incharge) Proclaimed Offenders Staff, Gujrat and 8 others constables as well as 8 private persons are accused in a complaint case by the appellant Rahim Dad for the murder of his two sons namely Muhammad Azam, Muhammad Azhar and one Noor Hussain under sections 120-B, 148, 302 and 109/149, P.P.C. It was complained by the appellant that in pursuance of a conspiracy the respondents committed the crime under the sections given above on 23-12-1983. As police officials were involved in the case, it was given a colour of police encounter and lot of public attention was attracted to the case. No case, however, could be registered with the police, therefore, the appellant filed a complaint on 18-7-1984. A judicial inquiry was made in the matter by Mr. Muhammad Musa Khan, Magistrate 1st Class, Gujrat in which the respondents were found guilty but in another inquiry conducted by the Assistant Commissioner, Mandi Bahaud Din, the police officials, accused in the complaint were exonerated and therefore the complaint was lodged. The complaint came up before a learned Sessions Judge, Gujrat who proceeded under section 204 of the Cr.P.C., recorded preliminary evidence and issued process against the respondents on 17-7-1985. In response to the summons issued by the learned Sessions Judge, the respondents appeared in Court and moved application for bail before arrest. Relying on the provisions of sections 90 and 91, Cr.P.C., the learned Sessions Judge rejected the bail application on 29-10-1985 holding that there were grounds for proceeding further in the matter. The respondents then moved in the High Court for their bail before arrest through Criminal Miscellaneous No.2807-B of 1985 on 12-11-1985 which came up for hearing before Mr. Justice Muhammad Rafiq the same day, who admitted the respondents to interim bail and then on 7-12-1985 confirmed the bail through the impugned order, hence the present appeal.

3. We have heard the learned counsel for the parties and have gone through the orders of the Courts below. The learned Single Judge while allowing bail to the respondents has observed, "The learned Sessions was empowered to issue warrants or summons for causing the accused to be brought or to 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 the Court. This section, by necessary implication also empowers the Court to commit the person present in the Court to custody if he fails to give security for his attendance. 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 10 years."

4. We have considered the arguments of the learned counsel for the parties in the light of the above observation and we are of the view that the learned Single Judge was justified in admitting the respondents to bail. His findings are unexceptionable and need no interference. This appeal fails and is hereby dismissed. MWA/R-9/SC Appeal dismissed.