Wednesday, 30 May 2012

Rule of consistency possible in pre-arrest bail

PLJ 2010 Cr.C. (Lahore) 860

Present: Iqbal Hameed-ur-Rehman, J.

AMJAD ALI--Petitioner

versus

MUHAMMAD BOOTA and another--Respondents

Crl. Misc. No. 12770-B of 2009, decided on 20.10.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pakistan Code 1860, (XLV of 1860) Ss. 419, 420, 468, 471--Bail before arrest--Grant of--Confirmed--Rule of consistency--Ingredietns of alleged offences were missing--Additional Sessions Judge while passing the impugned order has gone beyond his jurisdiction and has committed grave irregularity material illegality, which is not allowed in the Criminal justice--Co-accused of the petitioners have already been admitted to bail, therefore, while following the Rule of consistency also, the petitioner was entitled to the concession of pre-arrest bail--Bail granted.   [Pp. 862 & 863] A & B

Mr. M. Irshad Ch., Advocate with Petitioner.

Mr. Ghulam Qadir Bari, A.P.G. Punjab for State.

Mian Subah Sadiq Wattoo, Advocate for Complainant.

Date of hearing: 20.10.2009.

Order

Petitioner by way of instant petition has questioned the order dated 28.09.2009 passed by the learned Additional Sessions Judge Depalpur, District Okara; whereby post arrest bail granted to the petitioner by the learned Judicial Magistrate, Depalpur in case FIR No. 367/2009, dated 02.06.2009, registered under Sections 419, 420, 468, 471, PPC, at Police Station Hujra Shah Moqeem, District Okara in terms of order dated 31.08.2009 was recalled.

2.  Brief allegation against the petitioner as per contents of FIR is that petitioner contracted second marriage with Mst. Sarwat Bibi daughter of Muhammad Akbar although her previous marriage with the complainant was in field.

3.  Learned counsel for the petitioner submits that it was written in the Nikahnama with the petitioner that Mst. Sarwat Bibi was bachelor and her age was also mentioned as 18 years; that Mst. Sarwat Bibi had filed a suit for dissolution of her earlier marriage with the complainant on 02.01.2009, which was decreed on 13.03.2009 and as such she was no more wife of the complainant when the instant FIR was got registered. Learned counsel for the petitioner has further argued that the petitioner applied bail before the learned Judicial Magistrate on 27.08.2009, record for which was summoned on 29.08.2009, however, the same was not produced in the earlier part of the day. Further that in later hours the record was produced and the learned Magistrate granted post arrest bail, however, by typographical mistake the date was mentioned as 31.08.2009, which was again agitated before the learned Judicial Magistrate and was ultimately rectified. Learned counsel further submits that the petitioner has not contracted secret marriage rather his marriage with Mst. Sarwat has been entered in the relevant register. Learned counsel went on arguing that the offences in the instant FIR have wrongly been mentioned. Further that as the co-accused of the petitioner were admitted to bail, therefore, according to the rule of consistency the petitioner was also necessary to be admitted to bail in such circumstances. In the end learned counsel emphasis that the learned Additional Sessions Judge was not justified in recalling the bail granting order and has prayed for its dismissal.

4.  On the other hand learned counsel for the complainant submits that the basic ingredient of pre-arrest bail i.e. mala fide on the part of the complainant or police, has neither been mentioned in the petition nor the same has been argued before this Court; that first Nikah of Mst. Sarwat Bibi was solemnized on 27.08.2007, second Nikah with petitioner was solemnized on 07.07.2008. Further that suit for dissolution of marriage was filed on 02.01.2009, therefore the petitioner willfully contract marriage with Mst. Sarwat Bibi in the presence of her earlier Nikah with the complainant, which is neither allowed in our society nor our religion permits the same. Learned counsel further submits that the marriage of petitioner with Mst. Sarwat Bibi is void, ab intio and this case also attracts the provisions of Section 376, PPC, which attracts the prohibition contained in Section 497, Cr.P.C. and as such the prayer of the petitioner for pre-arrest bail cannot be granted. Learned counsel went on arguing that there is no illegality in the well-reasoned order of the learned Additional Sessions Judge, which is necessary to be upheld and the pre-arrest bail of the petitioner is necessary to be dismissed.

5.  Learned Assistant Prosecutor General Punjab while arguing the case frankly concedes that in the instant case ingredients of Sections 419, 420, 468 and 471, PPC are missing and only provisions of Section 495, PPC, are attracted.

6.  Arguments advanced by four corners have been heard. Relevant record perused with the able assistance of learned counsel for the petitioner, learned counsel for the complainant as well as learned Assistant Prosecutor General Punjab.

7.  It is an admitted fact that in the Nikahnama with petitioner age of Mst. Sarwat Bibi was mentioned as 18 years and also as unmarried, therefore, the offence if any stood committed was not by the petitioner. I fully agree with the arguments advanced by learned Assistant Prosecutor General Punjab that ingredients of offences under Sections 419, 420, 468, 471, PPC are not made out from the facts of the case rather provisions of Section 495, PPC attract to the instant case but that's too, not on the part of the petitioner.

8.  So far as impugned order of learned Additional Sessions Judge recalling the bail granting order of the petitioner is concerned, suffice it to say that superior Courts are of the consistent view that very cogent reasons should be advanced while rendering such opinion. The learned Additional Sessions Judge has much emphasized on the tampering of date in his order, which in my view is not on the part of the petitioner. It should have been better for the learned appellate Court to call for report from the learned Judicial Magistrate regarding this matter instead   of   discussing   such   reasons   in  the  bail   cancellation  order. Furthermore, clarification order regarding the date was also passed by the learned Judicial Magistrate in favour of the petitioner on 28.09.2009 while clarifying all the facts with regard to typographical mistake made in order dated 31.08.2009.

9.  In these circumstances I am of the considered view that the learned Additional Sessions Judge while passing the impugned order dated 28.09.2009 has gone beyond his jurisdiction and has committed grave irregularity/material illegality, which is not allowed in the criminal justice. Co-accused of the petitioners have already been admitted to bail, therefore, while following the rule of consistency also, the petitioner is entitled to the concession of pre-arrest bail.

10.  In sequel to what has been discussed above, bail cancellation order dated 28.09.2009, passed by the learned Additional Sessions Judge is hereby set aside and while accepting the instant petition ad-interim bail already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.

(S.S.)    Bail granted.


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