PLJ 2022 Cr.C. 1549
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435/439/401--Pakistan Penal Code, (XLV of 1860), S. 337-N(2)--Arsh/Daman--Nolo contendere--While declining post arrest bail to the petitioner on merits, petitioner was ordered to be released on bail by extending benefit of Section 337-N(2), PPC subject to deposit of Arsh--If an accused put “nolo contendere” (no contest), he can be released on bail if deposit the amount of Arsh/Daman--Provincial Government can suspend or remit the sentence without conditions or upon any condition which the person sentenced accepts--A criminal court can pass conditional order to restrict the liberty of any person or to impose any liability upon him or his property; obviously bail is the matter which restricts the liberty of a person--If the circumstances warrant, a condition can be imposed while granting bail to an accused--Conditional order of bail can be passed--The trend of conditional order of bail is now in vogue even through legislation of special laws--This revision petition, having no force or merit, is dismissed.
[Pp. 1550, 1551, 1553, 1554, 1555 & 1556] A, B, C, D, E, F, G
PLD 2009 Lahore 312; 1998 SCMR 1528; 2013 PCr.LJ 487 Lahore; PLD 2002 SC 534; 2003 PCr.LJ 216; 1998 SCMR 1528;
2021 SCMR 827; PLD 2020 Lahore 205 ref.
Mian Zulfiqar Ali, Advocate for Petitioner.
Mr. Muhammad Moin Ali, Deputy Prosecutor General for State.
Mr. Mubashir Iqbal Tarar, Advocate for Complainant.
Date of hearing: 17.6.2022.
PLJ 2022 Cr.C. 1549
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
BILAL AZAM--Petitioner
versus
MUHAMMAD HAQ NAWAZ, etc.--Respondents
Crl. Rev. No. 22527 of 2020, heard on 17.6.2022.
Judgment
Through this criminal revision, petitioner has called in question the order dated 15.04.2020, passed by the learned Additional Sessions Judge, Mandi Bahauddin, Whereby, while declining post arrest bail to the petitioner on merits, he was ordered to be released on bail by extending benefit of Section 337-N (2), PPC subject to deposit of ‘arsh’ amounting to Rs. 2,35,000/-and also furnishing of bail bond in sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of learned trial Court.
2. Heard. Record perused.
3. Learned counsel for the petitioner had a stance that petitioner asserted right of bail post arrest in a low voice before the Court of learned Additional Sessions Judge without putting Nolle Contendere but the order was passed by imposing a condition to deposit amount of requisite arsh for injury attributed to him if wishes to be released on bail; therefore, he after depositing the amount has come out to contest such conditional order of release on the ground that law does not permit to impose any condition for releasing the accused on bail. It was vociferous presentation by the learned counsel for the respondent/complainant with flow of arguments that it is permissible to pass such order if the circumstances demand and placed reliance on cases reported as “Haji Maa Din and another versus The State” (1998 SCMR 1528); “Ali Akhtar versus The State and another” (2013 PCr.LJ 487, Lahore); further stated that petitioner cannot approbate and reprobate in one sigh, to enjoy as well as to contest the conditional release, nor he can backout from his earlier stance and is estopped by his conduct; reliance was on “Attaullah versus Abdur Razaq and another” (PLD 2002 Supreme Court 534); “The State versus Muhammad Umar alias Chotoo” (2003 PCr.LJ 216). In the judgment referred above 2013 PCr.LJ 487, the Court has directed to deposit the amount of arsh conditional to release of petitioner but judgment referred above as 1998 SCMR 1528 shows that Honourable Supreme Court on the request of petitioners therein to waive the payment of arsh, has allowed the bail without imposing condition to deposit arsh amount but here in this case no such request was made. Petitioner has once conceded the conditional order and after deposit of arsh amount stood released on bail, his challenge thereafter is beyond comprehension. Learned counsel for the petitioner, however has not submitted arguments that such condition was illegal but the main stay was that conditional order of bail is prohibited under the law.
4. Attended both the contention, it is the precedent of this Court passed in case reported as “Ali Muhammad versus The State” (PLD 2009 Lahore 312) that if an accused put “nolo contendere” (no contest), he can be released on bail if deposit the amount of arsh/daman and the criminal process shall follow accordingly. But if such an offer is not tendered by the accused, as to whether Court while deciding bail petition of the accused can impose any condition like deposit of arsh amount etc. In this respect, though Chapter XXXIX of Code of Criminal Procedure, 1898 relating to subject of bail, does not contain any such provision but Chapter XXIX of Cr.P.C. contain a provision though in the form of remission or suspension of sentence, yet it does include a relevant provision to the subject in hand which so far has not been attended in any Court precedent as told to the Court. Section 401 of Cr.P.C. is reproduced as under:
401. Power to suspend or remit sentences:
(1) When any person has been sentenced to punishment of the offence, the Provincial Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Provincial Government, not fulfilled, the Provincial Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(4-A) The provisions of the above subjections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.
(5) Nothing herein contained shall be deemed to interfere with the right of the President or of the Central Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment.
(5-A) Where a conditional 'pardon is granted by the President or in virtue of any powers delegated to it by the Central Government, any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.
(6) The Provincial Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.”
The above section says that Provincial Government can suspend or remit the sentence without conditions or upon any conditions which the person sentenced accepts, and the condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
5. Powers conferred upon Provincial Government under this section can also be exercised by a Criminal Court to pass any conditional order under the Code of Criminal Procedure or any other law; Sub-Section 4-A of above Section 401 in this respect is reproduced again:
“The provisions of the above subjections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.”
The above sub-Section 4-A was inserted in Cr.P.C. through Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923). This sub-section clearly says that a Criminal Court can pass conditional order to restrict the liberty of any person or to impose any liability upon him or his property; obviously bail is the matter which restricts the liberty of a person; therefore, if the circumstances warrant, a condition can be imposed while granting bail to an accused but such condition should not be illegal or unreasonable, and either be accepted by him or is independent of his will. Criminal Courts have been classified in Section 6 of Cr.P.C. relevant part is as under:
Classes of Criminal Courts and Magistrates:
(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:-
(i) Courts of Session;
(ii) Courts of Magistrate.
As per classification the High Court, Special Courts, Court of Sessions and Magisterial Courts are the Criminal Courts of country; therefore, they can exercise powers under above section.
6. Imposing a condition while granting bail is routed in our system and occasionally helps the parties to avoid rigors of criminal process or facilitates them to settle their issues privately through alternate dispute resolution process, and this process is the need and demand of the time. Some of the conditional orders passed by the Courts are reflected as under:--
“Shahid Sultan Durrani versus The State” (2021 SCMR 827). A case of dishonestly issuing a cheque, Pre-arrest bail was granted with following condition:
Accused while present in Court submitted that he is ready to pay the whole disputed amount of two cheques to the complainant if some reasonable time is allowed to him. Complainant who was also present in the Court submitted that he was willing to accept the said offer provided that it was clarified to the accused that concession of bail would not be available to him if he did not honour his commitment, held that considering the circumstances of the case, the accused shall pay whole amount of two cheques i.e. Rs. 40,00,000/-(Rupees forty lac only) to the complainant within a period of one month and fifteen days and till then he shall not be arrested in the present case, however, if the accused failed to honour his commitment and did not pay the whole amount, as undertaken by him, to the complainant by the stipulated time, the restraining order shall lapse automatically and police shall be at liberty to arrest the accused.”
Following judgments also support that conditional order of bail can be passed:
“Faizan Rehmat versus The State” (2021 P.Cr.LJ 235, GB Chief Court); “Maryam Nawaz Sharif versus Chairman Nab” (PLD 2020 Lahore 205); “Gul Muhammad versus Abdul Rashid” (2016 YLR 2845, Peshawar); "Inayat Ullah versus The State” (2015 P.Cr.LJ 1575, Peshawar); “Allah Nawaz versus The State” (2010 YLR 1200, LHR); “Cool Industries (Pvt.) Ltd. through Manager versus Shafique Ahmed” (2010 MLD 435, LHR); “Waseem Zia versus The State” (2007 YLR 249, LHR); “Inamul Haq versus Judge, Special Court, Lahore” (PLD 2005 LHR 79); “Muhammad Saeed versus Superintendent, Central Jail, Faisalabad” (2000 PCRLJ 2, LHR ); “Muhammad Ayub versus Mst. Nasim Akhtar And Another” (1984 PCr.LJ 160, SC AJ&K); “Fatah Muhammad versus The State” (PLD 1973 LHR 874); “Mst. Chan Bibi versus The State” (1993 PCr.LJ 1317, Peshawar).
7. The trend of conditional order of bail is now in vogue even through legislation of special laws one of such laws is referred
embodied in the form of Section 21-D of Anti-Terrorism Act, 1997; relevant provision is reproduced as under;
Section 21-D:
(1) …………………………………………………………
(2) …………………………………………………………
(3) ………………………………………………………….
(4) ………………………………………………………….
(5) Without prejudice to any other power to impose conditions on admission to bail, the Court admitting a person to bail under this section may impose such conditions as it considers;
(a) likely to result in the person’s appearance at the time and place required [including very high bail sureties]; or
(b) necessary in the interests of justice or for the prevention of crime [including surveillance of the person granted bail to monitor his activities and requiring him to report to the concerned police station at specified intervals as determined by the Court].
(6) It shall be lawful for the person to be held in military or police protective custody in accordance with the conditions of his bail.
8. For what has been discussed above, this revision petition, having no force or merit, is dismissed.
(K.Q.B.) Petition dismissed
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