There is no cavil to the proposition that courts, by virtue of very purpose of their creation, are required to do justice. The expression “justice” in its broadest sense, is the principle that every individual must receive which he deserves according to law. Justice is a notion described as constant perpetual will to allot to every man what is due to him. Every criminal wrong must be reciprocated with procedural stringency and penal consequences. The allegations embodied in FIR, prima facie, attract the mischief of Section 458 PPC, which is titled as “lurking house-trespass or house breaking by night after preparation forhurt, assault or wrongful restraint” and is accordingly made punishable with imprisonment upto 14-years. Unfortunately, neither any section for trespass was applied in the FIR nor the penal provision for causing hurt to the complainant was mentioned therein. It goes without saying that courts, even at bail stage, are not bound by the provisions of law applied in the FIR rather have to see the offence applicable from the contents of prosecution case.
After having arrived at an irresistible conclusion that the bail granting orders passed in favour of accused suffer from perversity and call for an interference from this Court, the question of foremost importance arises that under what provision of law these orders can be set-aside in the absence of any petition for cancellation of bail. A peep through the constitutional history of subcontinent reveals that High Courts are always bestowed with powers to supervise and control subordinate courts. Such powers found place in Section 15 of the Indian High Courts Act, 1861 as well as in Section 107 of the Government of India Act, 1915. Similarly, through Article 227 of Indian Constitution, High Courts have power of superintendence over subordinate courts and tribunals. Even under Article 102 of the Constitution of Pakistan, 1962, the High Courts of our country were equipped with such powers. The Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) is no exception and each High Court is empowered under Article 203 to supervise and control all courts subordinate to it. The powers under Article 203 of the Constitution are primarily aimed at enabling the respective High Courts to uproot gross injustice committed by any subordinate Court. The powers of High Court under Article 203 of the Constitution are not to be exercised in every run of the mill case, rather the jurisdiction under the foregoing provision is to be invoked in cases of exceptional nature more importantly against orders passed in flagrant abuse of statutory and judicial directions. It needs no mention that the sole purpose of establishing judicial system is to impart justice. The purity of administering justice, if gets polluted due to erroneous decisions or for extraneous considerations, the litigants are likely to lose faith in courts. Article 203 of the Constitution enables a High Court to supervise and control the subordinate courts on judicial as well as on administrative side. The powers under Article 203 of the Constitution can be exercised in appropriate cases as suo moto by the High Court.
In addition to the jurisdiction under Article 203 of the Constitution, this Court can also correct a wrong done by an inferior criminal Court through the powers of revision bestowed by Sections 435 & 439 of Code of Criminal Procedure, 1898 (Cr.P.C). For the clarity of proposition, it is being mentioned that High Court under Section 435 Cr.P.C. can call for and examine the record of any proceedings of subordinate criminal Courts to satisfy itself about the correctness, legality or propriety of any finding, sentence or order. From the expression “may call for and examine the record of any proceedings before any inferior criminal court” used in Section 435 Cr.P.C., it implies firstly that for exercising revisional powers, there is no need of any formal application and secondly it is applicable against an order as well. The language of Section 435 Cr.P.C. is explicit in nature and it exudes therefrom that High Court can examine the vires of an order passed even under Section 497 Cr.P.C.
The expression “reasonable grounds” used in Section 497 (1) Cr.P.C. is of paramount importance and it came under discussion before the Hon’ble Supreme Court of Pakistan in case reported as Ch.Abdul Malik v. The State (PLD 1968 Supreme Court 349) and was defined as grounds which attract every prudent mind. If upon the touchstone of tentative assessment, reasonable grounds to connect an accused with commission of crime entailing punishment of 10-years and above are found from record, then concession of post arrest bail is to be withheld. From the impeccable identification proceedings, supporting medical report, recovery of robbed articles and chequered criminal antecedents of all the four accused, reasonable grounds to connect them with the commission of crime are found in existence. Even otherwise, the cases of dacoity and robbery can, by no stretch, be placed at lower pedestal so as to grant bail in such cases on artificially stretched reasoning, more importantly if sufficient incriminating material is available on record. The dacoits and robbers have embittered the lives of innocent persons and they oftenly deprive innocent citizens of their hard earned resources, thus the fate of bail applications moved by such outlaws are to be decided with pragmatic approach, rather than in an impassive manner. Likewise, the grant of bail to Bakht Taj (under notice) by learned ASJ after the dismissal of his earlier post-arrest bail petition can, in no manner, be justified. It goes without saying that an erroneous decision, besides causing miscarriage of justice also brings disrepute to the judicature, thus is to be uprooted and set-aside.
Crl.Misc.No.1014-B of 2021
Umar Zaib versus The State & another
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