2022 M L D 392
UMAR ZAIB Versus The STATE
Criminal Miscellaneous No.1014-B of 2021
Courts, by virtue of very purpose of their creation, are required to do justice---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 every man what is due to him---Every criminal wrong must be reciprocated with procedural stringency and penal consequences.
Revisional jurisdiction---Bail matters---Scope---High Court can correct a wrong done by an inferior criminal court through the powers of revision bestowed by Ss. 435 and 439, Cr.P.C.---High Court under S. 435, Cr.P.C., can call for and examine the record of any proceedings of subordinate criminal court to satisfy itself about the correctness, legality or propriety of any finding, sentence or order---Expression "may call for and examine the record of any proceedings before any inferior criminal court" used in S. 435, Cr.P.C., 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---Language of S. 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 S. 497, Cr.P.C.
Bail---Reasonable grounds---Scope---Expression "reasonable grounds" used in S. 497(1), Cr.P.C., is of paramount importance and has been defined as "grounds which attract every prudent mind."
Bail---Scope---If upon 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.
ORDER.--
--This is the second petition seeking post-arrest bail of Umar Zaib (petitioner) in case FIR No.406/2020 dated 08.05.2020 registered under Sections 394 and 411, P.P.C., at Police Station Taxila, Rawalpindi. Earlier one i.e. Crl.Misc.No.16-B of 2021 at the very outset was withdrawn by counsel appearing on behalf of the petitioner on 03.02.2021.
2. Succinctly stated, the case of prosecution, as can be culled from crime report, is to the effect that Bilal Hussain Shah (complainant) was having abode in Rahbar Colony, Taxila along with his family; that on 08.05.2020 at about 12:45 a.m. four unknown perpetrators aged about 28 to 30 years intruded into the house of complainant while having weapons with them; that one of the intruders placed dagger upon the neck of complainant; that upon the resistance offered by the complainant, the accused inflicted injury on his right hand; that thereafter, the accused persons overpowered the complainant and deprived him of gold ring, an artificial neckless, Oppo mobile phone model A3s and a Huawei mobile phone model Y7; that later the accused persons asked complainant to call his father out of bedroom but he alarmed his father not to come out upon which the assailants got infuriated and one out of them resorted to firing and thereby caused injury on the left foot of complainant; that subsequent thereto, all the four intruders decamped from the spot.
3. The instant post arrest bail came up for hearing before this Court on 27.05.2021 and its acceptance was mainly urged on the ground that similarly placed three co-accused, namely, Zafar Khan, Bakht Taj and Agha Jan have been granted bail by the learned ASJ, Taxila vide orders dated 13.03.2021, 17.03.2021 and 08.05.2021, respectively. Accordingly, the afore-mentioned orders were perused and since the observations mentioned therein were found not in consonance with record, hence, on 27.05.2021 a notice for cancellation of bail was issued to Zafar Khan, Bakht Taj and Agha Jan through following order:-
"During arguments, it was noticed that the instant robbery incident was committed by four unknown persons and latter veil was lifted from their identity through an identification test/proceedings. Accordingly, it emerged that Umar Zaib (petitioner) along with his co-accused Zafar Khan, Bakht Taj and Agha Jan committed the crime in question. The latter mentioned three accused persons were granted post arrest bail by the learned ASJ through orders dated 13.03.2021, 17.03.2021 and 08.05.2021 mainly on the ground that nothing was recovered from them. This Court has noticed with concern that learned ASJ paid no heed to the fact that all the accused persons were duly identified in identification proceedings as culprit of the instant occurrence and were having criminal antecedents. Apparently, the aforementioned orders of learned ASJ suffer from perversity, thus, this Court is compelled to take notice and to issue notice as to why the bail so granted to Zafar Khan, Bakht Taj and Agha Jan be not cancelled.
2. Fakhar Abbas S.I. is directed to ensure the attendance of above mentioned three accused persons with direction to arrange their representation. Likewise, complainant of the case be also informed about the pendency of proceedings of this Court.
3. Relist for 02.06.2021".
In consequence of above-referred order, all the three accused on bail appeared before this Court and joined the proceedings along with their counsel.
4. Learned law officer came forward with the submissions that the case in hand was initially registered against unknown persons and the foregoing fact is sufficient to infer that complainant was having no enmity so as to falsely implicate the accused persons in the case; that the petitioner and the accused under notice for cancellation of bail were later identified as culprits of instant crime during identification proceedings held in judicial custody under the supervision of a magistrate; that all the four accused are having criminal track record and multiple cases stand registered against them and that the allegations mentioned in FIR are amply supported by the medical evidence. With these submissions, learned law officer urged that not only the instant post arrest bail merits dismissal but the concession of bail granted to remaining co-accused is also to be withdrawn.
5. On the other hand, it was argued on behalf of Zafar Khan, Bakht Taj and Agha Jan that they are innocent in the case and have been falsely implicated; that none of the accused is nominated in the FIR and the correctness of identification proceedings can best be looked into by the trial court and that since the bail granting orders do not suffer from any legal infirmity, thus, need not to be disturbed. So far as, learned counsel for Umer Zaib (petitioner) is concerned, though he entered appearance on 27.05.2021 and advanced arguments, however on all later dates he opted to remain absent.
6. Arguments heard. Record perused.
7. It divulged from record that the case was registered for an incident having occurred on the night of 08.05.2020 at 12:45 a.m. During this incident, a bunch of four unknown perpetrators made ingress into the house of Bilal Hussain Shah (complainant) and later made good their escape along with certain robbed valuables like gold ring, neckless and two mobile phones etc. The robbers besides depriving the complainant of above mentioned articles, also inflicted two injuries upon his person, one on the right hand through dagger and the other on his right foot by a pistol shot.
8. The veil was lifted from the identity of the culprits when Umar Zaib (petitioner) was arrested in another case registered at Police Station Saddar Wah and disclosed to have committed the instant occurrence along with three others, namely, Zafar Khan, Agha Khan and Bakht Taj (under notice). Accordingly, all the afore-said accused were arrested in the instant case on 05.07.2020 and immediately thereafter were forwarded to judicial custody for holding identification test proceedings. During the identification test proceedings held on 20.07.2020, all the four accused were separately picked up by the two witnesses, namely, Bilal Hussain and Ibrar Hussain as culprits of the crime by ascribing them specific roles. After having eloquently perused the memo of identification proceedings, prima facie, no anomaly is discernable so as to extend the concession of bail to the accused persons. The acclaimed receipt of injury by the complainant is supported by a medical report annexed with the police file. Likewise, during investigation robbed articles were also recovered from the accused persons. It further unearthed during police probe that all the four accused were having criminal antecedents of involvement in multiple cases of alike nature. To be precise, the criminal track record of Umar Zaib and Zafar Khan comprises upon seven/eight criminal cases, whereas Agha Jan and Bakht Taj are having nine criminal cases in their credit. Last but not the least, it further emerged from record that Zafar Khan and Agha Khan (under notice) were Afghan nationals, staying in Pakistan without any valid permission.
9. Umar Zaib (petitioner) approached this Court for the grant of post arrest bail mainly on the ground that his similarly placed co-accused have been granted post arrest bail by the learned ASJ Taxila, thus, he is entitled to such relief on the principle of consistency. Accordingly, the record of the case was carefully scanned and it unearthed therefrom that initially Bakht Taj (under notice) filed post arrest bail in the Court of learned ASJ, Taxila but it met the fate of dismissal vide order dated 10.02.2021. For the sake of clarity, I am compelled to reproduce hereunder the operative part of bail refusal order:-
"Record transpires that the petitioner was arrested upon his own disclosure made during investigation of another case. Identification parade was conducted and the petitioner was rightly identified by the complainant during identification parade. During investigation, robbed mobile phone Huawei Y-7 and gold ornaments were recovered upon the pointation and possession of the petitioner which connects the accused with the commission of offence."
Subsequent thereto, Zafar Khan (under notice) approached learned ASJ, Taxila to get post arrest bail and was successful in getting the craved relief through order dated 13.03.2021. Thereafter, Agha Khan was also granted post arrest bail by the learned ASJ Taxila vide order dated 17.03.2021. It is important to mention here that while granting bail to Zafar Khan and Agha Khan (under notice), learned ASJ Taxila altogether ignored the fact that earlier he had withheld the relief of bail from a similarly placed co-accused Bakht Taj vide his order dated 10.02.2021. The most important aspect palpable from record is to the effect that Bakht Taj (under notice) again instituted post arrest bail petition in the Court of learned ASJ and was successful in securing bail vide order dated 08.05.2021. A wade through the afore-mentioned bail granting orders reveals that learned ASJ paid no heed to the legally flawless identification proceedings as well as to the gravity of incident in which accused after making ingress into the house at dark hours of night inflicted dagger blow and pistol shot injury to the complainant, for which a supporting MLC is also available on record. Similarly, the learned ASJ resorted to a deaf ear response to the fact that earlier he had refused post arrest bail to Bakht Taj through order dated 10.02.2021 and that too by mentioning the detail of identification test/proceedings and recovery of robbed articles. Indeed, nothing as such about identification proceedings is found mentioned in the bail granting orders passed by the learned ASJ. A pressing need is felt to mention here that according to principle of consistency, similarly placed accused persons are to be dealt with equivalence and accordingly if one out of them is refused bail by the Court the other is not to be extended such relief. Likewise, if one of the accused is granted bail then the similarly placed co-accused is also entitled to such concession. In the instant case, since Bakht Taj was denied bail by the learned ASJ vide order dated 11.02.2021, hence there was no occasion to accept the bail petition of Zafar Khan and Agha Khan through subsequent orders passed on 13.03.2021 and 17.03.2021, more importantly when nature of incriminating material against them was assimilating in nature. The reason of not mentioning the factum of identification proceedings, the receipt of multiple injuries by the complainant, the recovery of robbed articles and criminal antecedents of the culprits in all three bail granting orders is still opaque. Even otherwise, the second post arrest bail petition of Bakht Taj (under notice) was not maintainable before the learned ASJ keeping in view the dismissal of his earlier post arrest bail petition by the same Court vide order dated 10.02.2021 as there was no legally acknowledged fresh ground in terms of dictum laid down in case reported as The State through Advocate-General N.W.F.P. v. Zubair and 4 others (PLD 1986 Supreme Court 173). The rule of fresh ground in subsequent bail applications is so inflexible that it is even made applicable in cases wherein, the earlier bail petition is withdrawn after some arguments. In this regard, reference can be made to the cases reported as Amir Masih v. The State and another (2013 SCMR 1524), Nazir Ahmed and another v. The State and others (PLD 2014 Supreme Court 241), Muhammad Aslam v. The State and others (PLD 2015 Supreme Court 41) and Ghulam Qammber Shah v. Mukhtiar Hussain and others (PLD 2015 Supreme Court 66).
10. From the facts mentioned above, it can inescapably be held that bail granting orders dated 13.03.2021, 17.03.2021 and 08.05.2021 passed in favour of Zafar Khan, Agha Khan and Bakht Taj since are contrary to statutory and judicial directions, thus suffer from perversity. 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, P.P.C., which is titled as "lurking house-trespass or house breaking by night after preparation for hurt, 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. If any reference in this regard is needed that can be made to the case reported as Riaz Shah and another v. The State [1990 MLD 204 (Lahore)].
11. After having arrived at an irresistible conclusion that the bail granting orders passed in favour of Zafar Khan, Agha Khan and Bakht Taj 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 motu by the High Court. If any reference in this regard is needed that can be made to the cases reported as Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others (2000 CLC 1363) and The Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramanad and others (AIR 1972 SC 1598). At this stage, it is considered appropriate to reproduce an excerpt from the case of Anwar Ali (mentioned supra) which is as under:-
"The power under Article 203 can be exercised even suo motu by the High Court as a custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of the law. This power can only be exercised over Courts and Tribunals subordinate to it under its jurisdiction."
The scope of Article 203 of the Constitution also came up for hearing before Hon'ble Supreme Court of Pakistan in the case of Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others (2006 SCMR 1684) wherein it was held as under:-
"We have carefully gone through the judgments cited at the bar. The conclusion drawn therein is motivated mostly by:--
(i) Rajkumar v. Ramsundar 1932 PC 69; (II) Jaaluddin v. Jalaluddin 1962 SC (C.A. No.602 of 1961) and (iii) Rajkamal v. Indian Motion Picture Union 1962 C (C.A. No.622 of 1961).
According to their Lordships of the Privy Council, the superintendence of the High Court analogous to Article 203 of our Constitution includes the authority to direct inquiry with a view to take disciplinary action in cases of flagrant maladministration of justice. Cases came up before the Supreme Court of India where scope of section 107 of the Government of India Act, 1915 and Article 227 of the Indian Constitution came under discussion. Article 227 of the Indian Constitution substantially carries the same effect at the provisions of Article 203 of the present Constitution and Article 102 of the Constitution of 1962. The view taken was that the powers in question of the High Court are to supervise and control all Courts subordinate to it. It is meant to enable High Court to discharge its duties as a superior Court towards fair and proper administration of justice. It has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Such supervisory jurisdiction is for making and keeping the administration of justice pure and not to help any particular party."
12. 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 and 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 Hon'ble Supreme Court of Pakistan in case reported as Mushtaq Ahmad v. The State (PLD 1966 Supreme Court 126) while pondering upon the revisional powers of High Court observed as under:-
"We see no substance in this preliminary objection, for, it is obvious that an order directing the Magistrate to cancel bail and to issue non-bailable warrants against the appellant and to report his arrest to the learned Judge could not have been made as an administrative order, and must be treated as a judicial order. Under section 439 of the Criminal Procedure Code the High Court has a power to interfere upon information in whatever way received, as the section clearly says that it may do so in any case in which it has itself called for the record or which has been reported for orders or "which otherwise comes to its knowledge". These are words of wide import."
Similarly, in case reported as The State v. Muhammad Nazir and others (PLD 1991 Lahore 433), the bail granted by a subordinate Court was cancelled by the High Court through suo motu notice issued in revisional jurisdiction with following observation:-
"Judge of the High Court can issue suo motu notice for cancellation of bail allowed to accused by subordinate Court, on the basis of his own information or knowledge and without the matter having been entrusted to him in due course or the same having come to his notice through inspection etc. of the subordinate Court concerned or even through some matter pending before him."
13. Reverting back to the facts of instant case, admittedly all the four accused are reasonably connected with the commission of crime entailing punishment of more than 10-years. Regarding such like offences negative language is couched in Section 497(1), Cr.P.C. which for manifesting the proposition is being mentioned hereunder:-
" but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years."
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.
14. For what has been discussed above, this Court does not find any force in the instant petition and orders its dismissal. At the same time the orders dated 13.03.2021, 17.03.2021 and 08.05.2021 passed by learned ASJ Taxila whereby post-arrest bail was granted to Zafar Khan, Bakht Taj and Agha Jan (under notice) are recalled and in consequence thereof their bails are cancelled. They are present in Court and as such are ordered to be taken into custody so as to be lodged in jail. However, learned trial Court is directed to decide the fate of instant case expeditiously.
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