PLJ 2021 Cr.C. (Lahore) 550
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439/435--Pakistan Penal Code, (XLV of 1860), Ss. 419/428--Criminal revision petition--Pre-arrest was dismissed--Revision petition filed for grant of pre-arrest bail--However, fact that he was on ad-interim pre-arrest bail in instant case was in very much knowledge of police of said police station as both cases were registered in one and same police station and record of case arising out of F.I.R. was produced by Pervi Officer before Court of Addl. Sessions Judge, Gujranwala during proceedings of said petition for grant of pre-arrest bail on 18.08.2020 and also on 27.08.2020 when petition was adjourned for 11.09.2020--When aforestated application was moved by learned counsel for petitioner before Addl. Sessions Judge, while mentioning therein all aforementioned state of affairs i.e. petitioner is confined in Central Jail, Gujranwala in case arising out of aforestated F.I.R. and requested for exemption of his personal attendance and summoning him from jail concerned, then it was appropriate for Addl. Sessions Judge, (concerned) to summon petitioner/accused from jail and decide his petition for pre-arrest bail on merits because absence of petitioner/accused was not willful rather beyond his control as he was confined in Central Jail, Gujranwala (as mentioned above)--It goes without saying that if petitioner is granted ad-interim pre-arrest bail in a case till some specific date and during this period, police of same police station arrests him in some other case and said fact is brought into notice/knowledge of concerned Court then said Court is under all obligations to summon said accused from custody of police or a and decide his petition on merits instead of dismissing same due to non prosecution particularly when his counsel is available in Court to prosecute said petition because this is not willful absence--It further goes without saying that if it is not immediately checked then it would amount to encourage abuse of process of Court and defeat spirit of order Court qua granting ad-interim pre-arrest bail in a case and could give license to police to arrest accused in some other case when he is on ad-interim pre arrest bail in a case and then getting him confined in custody/jail and making impossible for him to approach Court on relevant date, of course, such sort of state of affairs is very alarming an neither can be appreciated nor approved. [Pp. 556 & 557] A, B & C
Ch. Faheem Anwar Jajjah, Advocate for Petitioner.
Rana Muhammad Arif Kamal Noon, Prosecutor General, Punjab and Mr. Safdar Hayat Bosal, Assistant Advocate General, Punjab alongwith Ms. Nuzhat Bashir, Deputy Prosecutor General, Mr. Usman Iqbal, Deputy Prosecutor General, Mr. Haroon Rasheed, Deputy District Public Prosecutor Rai Babar Saeed, City Police Officer, Gujranwala (Respondent No. 2), Nawaz Mial, D.S.P. (CIA), Gujranwala Babar Shoaib Inspector/S.H.O. (Respondent No. 3) and Mehmood-ul-Hassan S.I. (I.O.) Police Station Cantt. Gujrawala for State.
M/s. Muhammad Azeem Danyal and Shahid Mehmood Bhatti, Advocates for Respondent No. 5.
Date of hearing: 22.9.2020.
PLJ 2021 Cr.C. (Lahore) 550
Present: Farooq Haider, J.
FARHAN MASOOD KHAN--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 43212 of 2020, decided on 22.9.2020.
Judgment
Through instant revision petition filed by Farhan Masood Khan (petitioner/accused), order dated 11.09.2020 passed by learned Addl. Sessions Judge, Gujranwala, has been challenged, whereby petition for grant of pre-arrest bail filed by the petitioner in case arising out of F.I.R. No. 839/2020, dated 20.07.2020, registered under Sections 419, 420, PPC at Police Station Cantt. District Gujranwala, was dismissed.
2. Learned counsel for the petitioner in support of instant revision petition submits that petitioner filed aforestated petition for grant of pre-arrest bail on 23.07.2020 before learned Sessions Judge, Gujranwala in case arising out of F.I.R. No. 839/2)20, dated 20.07.2020, registered under Sections: 419, 420, PPC at Police Station, Cantt. District Gujranwala, which was entrusted to learned Addl. Sessions Judge, Gujranwala and petitioner was granted ad-interim pre-arrest bail on the same day till 18.08.2020, which was further extended till 27.08.2020 and then till 11.09.2020 (attested copy of the order sheet is available at Pages No. 29-30 of instant petition); further submits that petitioner was arrested by the police on 28.08.2020 and subsequently his arrest was shown on 31.08.2020 in case arising out of F.I.R. No. 938/2020, dated 28.08.2020. registered under Sections: 420, 468. 471, PPC at Police Station, Cantt. District Gujranwala; further adds that on 31.08.2020 application under Section: 491, Cr.P.C. was filed before learned Sessions Judge, Gujranwala for recovery of the petitioner/detenu, which was entrusted to learned Addl. Sessions Judge, Gujranwala, who deputed a bailiff for recovery of the petitioner/detenu on the same day i.e. 31.08.2020, bailiff submitted his report stating therein that petitioner/detenu is detained in lockup of Police Station, Cantt, Gujranwala and he has been arrested in case arising out of F.I.R. No. 938/2020, dated 28.08.2020, registered under Sections: 420, 468, 471, PPC at Police Station, Cantt. District Gujranwala, written report was also filed by the Deputy Superintendent of Police, Circle Cantt. Gujranwala before learned Addl. Sessions Judge, Gujranwala on 01.09.2020 while mentioning therein that petitioner has been arrested in the case arising out of aforestated F.I.R. No. 938/2020, dated 28.08.2020, registered at Police Station, Cantt. District Gujranwala and aforementioned application under Section 491, Cr.P.C. of the petitioner was disposed of vide order dated 01.09.2020 passed .by learned Addl. Sessions Judge, Gujranwala (copy of said petition, report of the bailiff, report of Deputy Superintendent of Police and order dated 01.09.2020 are available at Pages No. 13 to 26 of instant petition). Learned counsel further apprised that physical remand of the petitioner in said case was obtained from time to time and ultimately on 07.09.2020, he was sent to judicial lockup i.e. Central Jail, Gujranwala; further adds that since petitioner was on ad-interim pre-arrest bail in the instant case arising out of F.I.R. No. 839/2020 (mentioned above) till 11.09.2020, therefore, on the said date, application was filed on behalf of the petitioner by his learned counsel that petitioner has been arrested in case arising out of afore stated F.I.R. No. 938/2020 and now he is confined in judicial lockup and therefore unable to appear before the Court and that his personal attendance may be exempted and he be summoned from jail and then his petition for grant of pre-arrest bail be decided in accordance with law (copy of said application is available at Pages No. 27-28 of the instant petition) but learned Addl. Sessions Judge, Gujranwala has dismissed the petition filed by the petitioner for grant of pre-arrest bail in case arising out of aforestated F.I.R. No. 839/2020, vide order dated 11, 09.2020 (copy whereof is available at Page No. 31 of instant petition); for ready reference, relevant portion of said order is hereby reproduced:
“Farhan Masood Khan vs The State
11.09.2020
Present: Petitioner/accused is absent.
Ch. Faheem Anwar Jajja advocate, learned counsel for petitioner/accused.
Nasir-ud-Din Khan advocate, learned counsel for complainant.
Mrs. Rahat Manzoor, learned DDPP for the state. Pervi Officer alongwith record.
Order:
Learned counsel for petitioner/accused has submitted application for dispensation of personal attendance of petitioner/accused by alleging that petitioner/accused has been arrested in another case FIR No. 938/2020 dated 28.08.2020 offences u/S. 420/468/471, PPC, PS Cantt, Gujramvala. Since it is a pre-arrest bail and petitioner/accused has to appear before the Court on each and every date of hearing, therefore, application in hand is hereby dismissed having no legal force and substance.
Repeated calls were made but petitioner/accused did not appear before the Court. Therefore, the instant bail petition is hereby dismissed for non-prosecution. File be consigned to the record room after its due completion.
Announced Muhammad Tahir Latif
11.09.2020 Addl. Sessions Judge,
Gujranwala “
Learned counsel further submits that impugned order is against the settled principle of law on the subject and facts of the case and that since petitioner was on ad-interim pre-arrest bail till 11.09.2020 by the order of learned Addl. Sessions Judge, Gujranwala and it was brought into notice/knowledge of learned Addl. Sessions Judge, Gujranwala (concerned) that petitioner has been arrested in another case arising out of aforementioned F.I.R. No. 938/2020 and is confined in Central Jail, Gujranwala and said fact was admitted one and proved on the record, therefore, absence of the petitioner before the concerned Court on the said date was neither intentional nor willful rather it was beyond his control to appear before the Court as he was confined in Central Jail, Gujranwala in aforestated case. Learned counsel further goes on to add that since petitioner was yet not arrested in case arising out of F.I.R. No. 839/2020 rather was on ad-interim pre-arrest bail and his absence was not intentional, therefore, it was appropriate for learned Addl. Sessions Judge, Gujranwala to dispense with personal attendance of the petitioner for the said date and to summon him from jail and then decide the application on merits instead of dismissing the same due to non-prosecution; further adds that impugned order is not sustainable in the eyes of law rather liable to be set-aside. Learned counsel finally submits that all proceedings regarding arrest & custody of the petitioner thereafter in instant case are also not in accordance with law in the circumstances.
3. Learned Prosecutor General, Punjab submits that impugned order dated 11.09.2020 passed by learned Addl. Sessions Judge, Gujranwala is not proper and when it was brought into notice of learned Addl. Sessions Judge (concerned) that petitioner has been arrested and confined in another case arising out of aforestated F.I.R. No. 938/2020, registered at Police Station, Cantt. District Gujranwala and is confined in jail, then it was appropriate for him to summon the petitioner from jail in instant case and decide the petition on merits instead of dismissing the same due to non-prosecution, particularly when application was also filed by learned counsel for the petitioner in this regard; he further submits that now petitioner has been arrested in this case i.e. F.I.R. No. 839/2020 on 14.09.2020 from Central Jail, Gujranwala and in custody of police on physical remand granted by learned Area Magistrate till 23.09.2020, therefore, instant revision petition is liable to be dismissed.
4. Learned Assistant Advocate General, Punjab has fully adopted the arguments advanced by learned Prosecutor General, Punjab.
5. Rai Babar Saeed, City Police Officer, Gujranwala (present in Court) submits that when petitioner was arrested in case arising out of aforestated F.I.R. No. 938/2020, he was already on ad-interim pre-arrest bail in case arising out of F.I.R. No. 839/2020 till 11.09.2020, he was not arrested in that case at that occasion, however, when petitioner was sent to Central Jail, Gujranwala, then it was appropriate for Station House Officer and Investigating Officer (concerned) to bring into notice/knowledge of concerned jail authorities that petitioner/accused is on ad-interim pre-arrest bail in case arising out of aforestated F.I.R. No. 839/2020 till 11.09.2020 and to manage production of petitioner/accused in co-ordination with jail authorities before the Court of learned Addl. Sessions” Judge, Gujranwala on 11.09.2020 for his appearance in his petition for grant of pre-arrest bail, which was pending over there in case arising out of F.I.R. No. 839/2020 (mentioned above) but this is omission on part of the Station House Officer (concerned) and Investigating Officer, however, such sort of omission will not be repeated in future.
6. Learned counsel appearing on behalf of respondent No. 5 submits that since petitioner/accused did not appear before the Court of learned Addl. Sessions Judge, Gujranwala in spite of repeated calls, hence, his petition for grant of pre-arrest bail was rightly dismissed for non-prosecution; further adds that now petitioner has been arrested in the instant case and is on physical remand till 23.09.2020, therefore, instant petition is liable to be dismissed.
7. After hearing learned counsel for the parties, learned Prosecutor General, Punjab, learned Assistant Advocate General, Punjab and going through the available record with their able assistance, it has been noticed that Farhan Masood Khan (present petitioner/accused) applied for grant of pre-arrest bail in case arising out of F.I.R No. 839/2020, registered at Police Station; Cantt. District Gujranwala (mentioned above) before learned Sessions Judge, Gujranwala, which petition was entrusted to learned Addl. Sessions Judge, Gujranwala and petitioner was granted ad-interim pre-arrest bail on the same day till 18.08.2020, which was further extended to 27.08.2020 and then till 11.09.2020, however, petitioner was arrested on 31.08.2020 in case arising out of F.I.R. No. 938/2020, dated 28.08.2020 (mentioned above), petition under Section: 491, Cr.P.C. was filed for his recovery and bailiff submitted his report on 31.08.2020 to the extent that petitioner has been arrested in case arising out of aforestated F.I.R. No. 938/2020 registered at Police Station, Cantt. District Gujranwala and said petition was disposed of vide order dated 01.09.2020 (mentioned above). Now it is admitted position that both cases i.e. F.I.R. No. 839/2020 and F.I.R. No. 938/2020 were registered in one and the same police station i.e. Police Station, Cantt. District Gujranwala; petitioner was arrested on 31.08.2020 in case arising out F.I.R. No. 938/2020, he was on ad-interim pre-arrest bail till 11.09.2020 in case arising out of F.I.R. No. 839/2020 and was not arrested in said case, however, fact that he was on ad-interim pre-arrest bail in instant case was in very much knowledge of police of said police station as both cases were registered Description: Ain one and the same police station and record of case arising out of F.I.R. No. 839/2020 was produced by Pervi Officer before the Court of learned Addl. Sessions Judge, Gujranwala during proceedings of said petition for grant of pre-arrest bail on 18.08.2020 and also on 27.08.2020 when petition was adjourned for 11.09.2020; petitioner was sent to Central Jail, Gujranwala in case arising out of aforestated F.I.R. No. 938/2020 but Station House Officer of Police Station, Cantt. Gujranwala and Investigating Officer (concerned) did not inform the concerned authorities of Central Jail, Gujranwala that petitioner was on ad-interim pre-arrest bail till 11.09.2020 in instant case and he has to be produced over there and also did not make any arrangement for his production before the said Court on 11.09.2020, although record of the case was even on that day produced by the Pervi Officer before said Court; furthermore, when aforestated application was moved by learned counsel for the petitioner before learned Addl. Sessions Judge, Gujranwala while mentioning therein all the aforementioned state of Description: Baffairs i.e. petitioner is confined in Central Jail, Gujranwala in case arising out of aforestated F.I.R. No. 938/2020 and requested for exemption of his personal attendance and summoning him from jail concerned, then it was appropriate for learned Addl. Sessions Judge, Gujranwala (concerned) to summon the petitioner/accused from jail and decide his petition for pre-arrest bail on merits because absence of the petitioner/accused was not willful rather beyond his control as he was confined in Central Jail, Gujranwala (as mentioned above). It goes without saying that if petitioner is granted ad-interim pre-arrest bail in a case till some specific date and during this period, police of the same police station arrests him in some other case and said fact is brought into notice/knowledge of concerned Court, then said Court is under all the obligations to summon said accused from custody of the police or the jail and decide his petition on merits instead of dismissing the same due to non prosecution particularly when his counsel is available in Court to prosecute said petition because this is not willful absence. It further goes without saying that if it is not immediately checked then it would amount to encourage the abuse of process of Court and defeat the spirit of order of the Court qua granting ad-interim pre-arrest bail in a case and could give license to the police to arrest the accused in some other case when he is on ad-interim pre arrest bail in a case and then getting him confined in custody/jail and making impossible for him to approach the Court on the relevant date, of course, such sort of state of affairs is very alarming an neither can be appreciated nor approved. Therefore, impugned order dated 11.09.2020 passed by learned Addl. Sessions Judge, Gujranwala regarding dismissal of petition filed by the petitioner for grant of pre-arrest bail in case arising out of F.I.R. No. 839/2020, registered at Police Station, Cantt. District Gujranwala, due to non-prosecution, is not in accordance with law and facts of the case rather null & void ab-initio, hence, hereby set-aside; said petition for grant of pre-arrest bail shall be deemed as pending before the same Court and same shall be decided after summoning the petitioner/accused from custody. In the peculiar facts and circumstances of the case, since impugned order regarding dismissal of petition for grant of pre-arrest bail, has been set-aside, therefore, subsequent proceedings qua arrest of the petitioner and his custody in the light of orders passed by learned Area Magistrate in instant case shall remain in abeyance till decision of the aforestated petition by said Court. Parties shall appear before the said Court tomorrow i.e. on 23.09.2020. Revision petition stands accepted. Deputy Registrar (Judicial) of this Court shall immediately send copy of this order via fax to learned Addl. Sessions Judge, Gujranwala (concerned) through learned Sessions Judge, Gujranwala.
Description: C(A.A.K.) Revision accepted
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