P L D 1997 Lahore 659
(a) Criminal Procedure Code (V of 1898)---
---S. 497/498---High Court (Lahore) Rules and Orders, Vol. III, Chap. X, R.14, Note 11---Institution of bail application---Forum---Bail application of every nature ordinarily is to be moved before and disposed of by the Court of original jurisdiction---Bail application, in exceptional cases, however, can be moved before High Court as provided in Note 11, R.14, Chap. X of the High Court (Lahore) Rules and Orders, Vol. III.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), 5.420/468/471---Pre-arrest bail, grant of---Deputy Commissioner being the complainant in the case, matter was taken up directly by High Court for disposal in accordance with law ---F.I.R. in the case had allegedly been sealed, but its number and date having been mentioned in the bail application, interim pre-arrest bail had been granted to accused--- Offences under Ss.468 & 471, P.P.C. being not cognizable, Police had not obtained any warrants or permission from the Area Magistrate to register and investigate the case, while offence under 5.420, P.P.C. was bailable-- Complaint had been sent to the police by the Deputy Commissioner as the Administrator of the school concerned and he had not passed the executive order in his capacity as the Magistrate of the District being the representative of the State---Qualification for appointment as School Teacher in the school was simple graduation whereas the accused was admittedly having the qualification of M.A. (Economics) whose marks had been verified by the Controller of Examinations as 441 instead of 451 as shown in her result card---Accused was a Graduate at the time of her joining the service as a School Teacher---Said verification of the Controller of Examination was not a source of wrongful gain to the accused or any wrongful loss to the complainant to the detriment of the affairs and welfare of the School and the same was not enough tip strengthen the prosecution case against her which required further inquiry---Accused being a female, her case was also covered by first proviso to S.497(1), Cr.P.C. which principle was also attracted to a matter of pre-arrest bail---Accused was admitted to pre-arrest bail in circumstances.
Ghulam Qasim alias Muhammad Qasim and others v. The State 1991 PCr.LJ 2418 and Muhammad Azam v. The State 1995 MLD 1837 ref.
(c) Criminal Procedure Code (V of 1898)--
----Ss. 498 & 498-A---Pre-arrest bail---Grant of pre-arrest bail where F.I.R. is not available ---F.I.R. is sealed. to cause inconvenience to adverse party whose honour and prestige is placed at stake as according to S.498-A, Cr.P.C. without a copy of the F.I.R. an application for pre-arrest bail cannot be filed---Superior Courts or Sessions Court, due to such conduct of police, could exercise the discretion and jurisdiction to admit the accused to. pre-arrest bail even though a copy of the F. I. R. was not annexed and only the number of the F. I. R. with the year and the police station was mentioned.
(d) Criminal Procedure Code (V of 1898)---
----S. 154---Constitution, of Pakistan (1973), Arts. 4(1) & 25(1)---Sealing of F.I.R.---First information report cannot be sealed by the police itself and/or at the direction of any Executive Authority of any rank.
Syed Munawar Hussain Naqvi for Petitioner
Shabbir Ahmad Afghani, Asstt. A.-G. for the. State
Sheikh Mahmood Ahsan, Coordinator with Record.
Date of hearing: 17th July, 1997.
RAZIA SHAHEEN VS THE STATE
P L D 1997 Lahore 659
Before Muhammad Naseem Chaudhri, J
Mst. RAZIA SHAHEEN ---Petitioner versus
THE STATE---Respondent
Criminal Miscellaneous No.502-B of 1997, heard on 17/07/1997.
JUDGMENT
Mst. Razia Shaheen petitioner is the accused of - Crime Case No.396 of 1997 registered at Police Station City Bahawalnagar under section 420/468/471, P.P.C. at the instance of Deputy Commissioner/Administrator, Bahawalnagar Public School, Bahawalnagar.
2. Apprehending her. arrest Mst. Razia Shaheen has filed this petition for her admission to pre7arrest bail. .
3. This petition was filed on 11-7-1997 when the petitioner took up the stand that the First Information Report had been sealed and neither a copy of the same is available nor has been made available to her in spite of the requests/efforts made thereof. However, she came to know the number of the F.I.R.
4. On 11-7-1997 Mst Razia Shaheen petitioner was admitted to interim pre-arrest bail.
5. It would be proper to express at this stage that ordinarily bail application of every nature is to be moved before and disposed of by the Court of original jurisdiction. However, in exceptional cases the application can be moved before the High Court as provided in Note II, Rule 14, Chapter X of the Lahore High .Court Rules and Orders, Volume III. Since the contention of the petitioner was, which is .also correct, that the Deputy Commissioner is the complainant of the case, the matter was taken up directly by this Court for disposal in accordance with law.
6. F.I.R. No.396, dated 4-7-1997 was registered at Police Station City Bahawalnagar under section 420/468/471, P.P.C. on the written complaint of the Deputy Commissioner/Administrator, Bahawalnagar Public School, Bahawalnagar wherein it was alleged that Mst Razia Shaheen daughter of Chaudhry Abdul Ghafoor had been serving as the teacher in the Bahawalnagar Public School, Bahawalnagar since 17-4-1994 whose result card of M.A. (Economics) was got verified from the Controller (Examinations), Islamia University, Bahawalpur who has reported that the same was tampered with and that she being a 3rd Divisioner posed herself to be a ,2nd Divisioner in M.A. (Economics). Formal F.I.R. was registered on the basis of Letter No.BPS/43 dated 4-7-1997.
7. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate-General for the State and gone through the record. Learned counsel for the petitioner argued that the copy of the F.I.R. was not made available to the petitioner which was sealed without any justification which is enough to make out the mala fides of the prosecution case as the same has arisen a suspicion about its correctness. He added that the offences under section 468/471, Pakistan Penal Code being not cognizable and the police had not obtained any warrant or permission from the Area Magistrate to register or investigate the case under the said sections, the petitioner, who is an educated female, is entitled to be admitted -to pre-arrest bail especially when section 420, P.P.C. is bailable. He added that on the written request made by the Deputy Commissioner, Bahawalnagar the Controller of Examinations, Islamia University, Bahawalpur intimated that Mst. Razia Shaheen had secured 441 marks instead of 451 marks mentioned on her Result Card which was not enough to implicate the petitioner as the maximum qualification for the teaching job she obtained was simple graduation and thus no wrongful gain was acquired by her. He added that due to the filing of the writ petition against her removal by the petitioner, the matter has been taken in the aforesaid manner to police to put the pressure against her. On the contrary the learned Assistant Advocate-General argued that the petitioner had secured 441 marks while in the result card she has shown 451 marks and for that reason she was liable under section 420/468/471, P.P.C. who, as such, is not entitled to be admitted to pre-arrest bail. He, however, admitted that the qualification to secure the teaching job against which Mst Razia Shaheen was appointed was simple graduation. He added that the First Information Report was not sealed and was available, a copy of which was not procured by the petitioner.
8 First of all would like to dispose of the controversy about the sealing of First Information Report registered against an accused. Learned counsel for the petitioner has shown me the Form submitted before the area Magistrate whereby the written request was made for the supply of the copy of the F.I.R. and it was written twice on the same that the copy of the F.I.R. was not sent to the said Court. Anyhow at present the copy of the First Information Report has been produced in Court. This difficulty is always faced when the First Information Report is got registered by the executive authorities holding high pedestal Muss fuss emanates whenever such a situation arises. It would be better to give the verdict as to whether or not the First Information Report can be SEALED. A perusal of Chapter XIV of the Code of Criminal Procedure inclusive of section 154 about the information in cognizable cases has made out that there is no provision empowering any authority to seal the First Information Report registered against the accused person(s). It would be convenient to reproduce as under Rule 24.5 contained in Chapter XXIV of the Police Rules, 1934:--
"24.5. First Information Report Register.--(1) The First Information Report Register shall be a printed book in Form 24.5(1) consisting of 200 pages and shall be completely filled before a new one is commenced. Cases shall bear an annual serial number in each police station for each calendar year. Every four pages of the register shall be numbered with the same number and shall be written at the same time by means of the carbon copying process.
The original copy shall be preserved in the Police Station for a period of sixty years. The other three copies shall be submitted as under:--
(a)One to the Superintendent of Police or other gazetted officer nominated
by him.
(b)One to the Magistrate empowered to take cognizance of the offence asis required by section 157, Code of Criminal Procedure.
(c)One to the complainant---unless a written report in Form 24.2(1) has been received in which case the check receipt prescribed will be sent. "
9. In the aforesaid clause (c) the written report in Form 24.20) pertains to written reports by village Headmen (Lambardars).
10. In this regard it is also proper to reproduce as under section 158 of Qanun-e-Shahadat, 1984:
158. Production of documents.--(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any objection shall be decided on by the Court.
(2)The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take evidence to enable it to determine on its admissibility.
(3)If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence, and, if the translator disobeys such direction, he shall be held to have committed an offence under section 166 of the Pakistan Penal Code Act (XLV of 1860).
11.This section is relevant with respect to the controversy being disposed of because where a person is directed to produce some document, he must produce it and notwithstanding of the fact that it is privileged document. If the privilege is claimed then it is for the Court to determine whether the document of the kind in respect of which privilege should be allowed or not. The Court may to that end inspect that document. It can safely be deduced that the F.I.R. which is to be maintained according to Para. 24.5, Chapter XXIV of the Police Rules, 1934 cannot be retained as a privileged document even before the matter is brought to the notice of the competent Court as it is legal right of the complainant or the accused to get a copy of the F.I.R. either from the police station or from the Office of the Superintendent of Police or his authorised person or from the Court of the Area Magistrate. Without being disrespectful to any concerned or unconcerned person in the matter I have to express that the F.I.R. is sealed so that the adverse party is put to inconvenience whose honour and prestige is placed at stake as according to section 498-A of the Code of Criminal Procedure without a copy of the F.I.R. and application for pre-arrest bail cannot be filed. It is due to this conduct of the police that the superior Courts or the Court of Session exercise the discretion and jurisdiction to admit the accused to pre-arrest bail even though a copy of the F.l.R. is not annexed and only the number of the F.I.R. with the year and the police station is mentioned.
12. Since there is no provision in the substantive or procedural law of the country sealing the First Information Report, I hold that the first Information Report cannot be sealed by any authority. It shall not be out of place to express that the original copy has to be preserved in the police station for a period of sixty years which is part of the register consisting of 200 pages. If the first Information Report of any case, ordinary or sensational, is sealed, the remaining first information reports of the same register comprising 200 pages shall have also to be sealed. It is not practically possible and also would not be taken in good taste especially when an accused cannot be deprived.of the justice of the Court and according to the provisions of section 498-A, Code of Criminal Procedure he cannot enter the portal of the Court for his admission to pre-arrest bail without the copy of the first information report. In the instant matter the number and the date of first information report came to the knowledge of the petitioner and the same was entered in the petition under disposal and for that reason in the circumstances of the matter the temporary relief was granted to her.
13. Another aspect of the matter cannot be lost sight of which is to this effect that according to Article 4(1) of the Constitution it is the right of every citizen to "enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be and of any person for the time being within Pakistan". Moreover equality of citizens inter se has also to play the vital role in this regard. Article 25(i) of the Constitution reads as under:--
25.--(1) All citizens are equal before law and are entitled to equal protection of law.
14. In view of the aforesaid aspect of the matter no accused can be allowed inequitable treatment by sealing his F.I.R. while keeping the F.I.Rs. of the others as open to their reach. In short I hold that the First Information Report cannot be sealed, by the police itself and/or at the direction of any executive authority of any rank. This controversy is answered in the aforesaid manner.
15. With respect to the merits of the matter, I have to rely on the dictum enunciated in Ghulam Qasim alias Muhammad Qasim and others v. The State 1991 PCr.LJ 2418 wherein it has been commanded that the offences under sections 468 and 471, Pakistan Penal Code being not cognizable as the police had not obtained any warrants or permission from the Area Magistrate to register or investigate the case under these sections, while an offence under section 420, Pakistan Penal Code is bailable, there would be no alternative but to accept the bail application. The aforesaid ruling has also been followed in Muhammad Azam v. The State 1995 MLD 1837 (Multan Bench). In the instant matter the complaint was sent to the police by the Deputy Commissioner as the Administrator Bahawalnagar, Public School, Bahawalnagar who had not passed the executive order in his capacity as the Magistrate of the District being the representative of the State. As such through the attraction of the aforesaid rulings the petitioner accused is entitled to be admitted to pre-arrest bail.
16. The qualification for appointment as school teacher in Bahawalnagar Public School, Bahawalnagar was and is simple graduation. Since the petitioner is admittedly having the qualification of M.A. (Economics) whose marks have been verified by the Controller of Examinations, Islamia University, Bahawalpur as 441 instead of 451 as shown in her result card. She was a graduate at the time of her joining the service as a school teacher. She passed her M.A.(Economics) Examination during the year 1985 and obviously did her graduation two years prior to that, while she obtained the job during the year 1994. As such it can safely be expressed that the aforesaid verification of the Controller of Examinations, Islamia University, Bahawalpur is not a source of wrongful gain by Mst. Razia Shaheen petitioner-accused or any wrongful loss to the complainant to the detriment of the affairs and welfare of the Bahawalnagar Public School, Bahawalnagar. It shall not be out of place to express that according to the University calendar "errors and omissions are to be accepted", meaning thereby that the University Authorities may be at fault in the matter of making the entry in the result card. This power of correction has been kept open by the University. The degree. is issued afterwards, while the result card is issued just after the announcement of the result of the examination. It is a matter of common knowledge that the convocations are not being conducted by the Universities and Colleges and for that reason the aforesaid verification of the marks by the Controller of Examinations Islamia University, Bahawalpur is not enough to strengthen the case of the prosecution against the petitioner-accused which as such has become that of further inquiry. She is a female and her case is also covered by the proviso (1) to subsection (1) of section 497, Code or Criminal Procedure which principle is also attracted to a matter of pre-arrest bail. In the circumstances I hold that it is a fit case to admit Mst.Razia Shaheen to pre-arrest bail than to remit her to jail.
17. For what has been said above, I accept this application and admit Mst.Razia Shaheen petitioner-accused to pre-arrest bail in the sum of Rs.5,000 with one surety in the like amount to the satisfaction of the learned Area Magistrate, Bahawalnagar. This order shall be got executed by the petitioner, as directed above, within a period of 20 days failing which this order shall become infructuous and she shall be liable to face the legal consequences.
N.H.Q./R-36/LPre-arrest bail granted
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