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P L D 1985 Karachi 694
Before Abdul Razzak A. Thahim, J
Shaikh Hajt ALI MUHAMMAD-Applicant
versus
MUHAMMAD YOUSUF ZAMAN AND 2 OTHERS- Respondents
Criminal Miscellaneous Application No. 479 of 1985, decided on 25th July, 1985.
-- Ss. 499, 498 & 497-Penal Code (XLV of 1860), S. 408-Bail-Bond of accused and sureties-Bail application of accused dismissed by Sessions Judge and this fact having been suppressed intentionally by accused, he sought bail from Sub-Divisional Magistrate-Magistrate without giving notice to other party or State not only granted interim bail but even on next day confirmed same without nearing State or perusing police record -Record showed that original release warrant was written by Magistrate himself which did not bear seal of the Court-Police was also not directed by Magistrate to get personal bond from accused-Magistrate, held, violated mandatory provisions of section 499, Cr. P. C.-Bail of accused granted by Magistrate cancelled by High Court in circumstances.
1973 S C M R 107 and P L D 1976 Kar. 1165 discussed.
-- Ss. 497 & 498-Penal Code (XLV of 1860), S. 408-Accused already was refused bail by Sessions Judge-Such fact intentionally suppressed by accused-Grant of interim bail by Magistrate-Confirmation-Court cannot release any person on bail unless prosecution has been given notice to show cause why accused should not be so released-Investigating Officer present in Court and stating that accused was required for purpose of investigation-Grant of bail by Magistrate to an accused who had not come to Court with clean hands and without giving opportunity to prosecution to be heard, held, was contrary to law-Bail so granted was cancelled by High Court.
Ilyas Khan for Appellant.
Rashid Tariq Khan and Muhammad Saleem for Respondents Nos. 1 and 2.
Abdul Sattar Shaikh for Add[. A: G. for the State.
This application under section 497(5)/561, Cr. P. C. has been filed by Complainant Shaikh Haji Ali Muhammad to challenge the order dated 11-5-1985 of S. D. M. Central and A. D. M. East, Karachi, whereby he granted bail to respondent Muhammad Yousuf Zaman.
2. The facts leading to filing of this application are that on 16-4-1985 applicant filed report for the offence punishable under section 408, P. P. C. at P. S. Bahadurabad, Karachi. Respondent applied for bail before arrest and the learned Sessions Judge, Karachi, granted him interim bail on 20-4-19x5. The matter came up for confirmation of bail on 11-5-1985. The bail of the respondent was not confirmed and learned Sessions Judge recalled his previous order and dismissed the application and respondent was arrested by the police on the same day.
The bail application was again moved in the Court of S. D. M. Central A. D. M. East, Karachi, on the same day and the respondent was granted interim bail.
3. Mr. Ilyas Khan, Advocate, appearing for applicant/complainant submitted that S. D. M. has wrongly granted bail on the same day when application was dismissed by the Sessions Judge on merits and his contention is that respondent neither furnished any surety nor personal bond was taken from him while releasing him. He has further argued that release warrant was written by the S. D. M. in his own hand at his residence in the evening on plain paper.
4. Mr. Muhammad Saleem, Advocate, appearing for the respondent contended that offence under section 408, P. P. C. is punishable with " years' R. I. and in such cases. Grant of bail is a rule and S. D. M. has rightly exercised his jurisdiction. He has referred to cases reported in 1973 S C M R 107 and P L D 1976 Kar. 1165. His contention is that case has been filed due to male fide.
5. Mr. Abdul Sattar Shaikh, learned Additional Advocate-General, submitted that S. D. M. had jurisdiction to grant bail therefore order is not illegal but he states that without furnishing bond or surety release of respondent was ordered contrary to the provisions of law, therefore, he does not support the order of grant of bail.
6. The application of respondent for bail before arrest was dismissed by the learned Sessions Judge, Karachi, on 11-5-1985 on merits and law by a detailed order. He also observed that applicant has not made out a case that polite has ulterior motive to mala fidely arrest him. The. respondent in his application before S. D. M. did not disclose the fact that his bail application was dismissed by the Sessions Judge. He intentionally suppressed this fact. (he release warrant issued does not bear the seal of the Court and it appears to have been written by Magistrate in his own hand. The order is reproduced below :
"Release order.
I Sajjad Saleem Hotiana S. D. M. Central order the release of Muhammad Yousuf Zaman destained in case F. I. R. 53/85 immediately and if not required in any other case.
The accused may be directed to appear before me on 12-5-1985 and present a solvent surety of Rs. 20,000 (Twenty thousand only).
(Sd.)
Sajjad Saleem Hotiana
11-5-1985 S. D. M. Central &
< [if supportLists]>A. D. M. Karachi East.
< [if supportLists]>B. 532130
The order of the grant of bail on the bail application is as follows :
"Order under section 497(2), Cr. P. C.
Heard the Advocate for the accused and perused the contents of police report, F. 1. R. The accused is not directly involved in the crime the allegation of abatement needs further evidence. The offence under section 408, P. P. C. is punishable by 7 years at the most and therefore, the accused has a right to get bail under the prevailing norms set by the High Courts.
Accused Muhammad Yousuf Zaman is granted interim bail in the sum of Rs. 20,000 (Twenty thousand) till 12-5-1985 which will be confirmed on presentation of solvent surety.
(Sd.)
Sajjad Saleem Hotiana
A. D. M. East,
11-5-1985. "
The Magistrate was asked by this Court to explain. as to under what provisions of law and authority he has passed the bail order without stating facts and reasons and without giving notice or hearing the counsel of the State. He submitted that Advocate for accused had not mentioned in his application that any order was passed earlier by the District and Sessions Judge and he has stated having a territorial jurisdiction he has jurisdiction to try accused and pass order on bail application.
On 12-5-1985 the bail of the respondent was confirmed and his final order is reproduced as under :
"Bail confirmed after presentation of solvent surety in the sum of Rs. 20,000 (Twenty thousand).
(Sd.)
Sajjad Saleem Hotiana
12-5-1985."
The bail application was dismissed by the learned Sessions Judge and this fact was suppressed intentionally by the respondent and sought bail from the S. D. M. The Magistrate without giving notice to other party or State not only granted interim bail but even on next day confirmed the same without hearing State or perusing the police papers. The original release warrant is A available in police papers and I have perused the same which shows that this letter was written by S. D. M. himself and it bears no seal of the court. Furthermore, while sending release letter he did not direct the police to get personal bond from the respondent. He has violated the mandatory provision of section 499, Cr. P. C. Section 499, Cr. P. C. reads as under :
"499. Bond of accused acid sureties.-(1) Before any person is released on bail or released on his own bond, a bond for such of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the officer or Court, as the case may be.
(2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other Court to answer the charge."
He has not cared to read provision of section 497, Cr. P. C. which requires that Court shall not release any person on bail unless the prosecution has been given notice to show cause why accused should not as so released. In this case, even at the time of confirmation of bail the prosecution was not given opportunity to be heard.
Investigating Officer was present in Court when application was argued. He has stated that accused-respondent is required for the purpose of investigation.
Without going into the merits of the case, I am of the opinion that order passed by the S. D. M. is contrary to the provision of law.
The Magistrate has hurriedly without applying his mind and ignoring the provisions of law passed the bail order and this order in my view cannot be maintained. On the other hand, respondent did not come with clean hands and get bail.
For the reasons stated above I set aside the orders of S. D. M. Central and A. D. M. East, Karachi, passed on 11-5-1985 and 12-5-1985. Consequently bail granted by the S. D. M. to the respondent is cancelled.
I have not touched the merits of the case, therefore, respondent is at liberty to move fresh application after the investigation is complete.
Before parting with order I have to mention that during arguments Mr. M. Ryas Khan pointed out that Magistrate has gone to the extent that he has tamapered with the record. In support of his contention he has placed on record certified copy of surety bond which shows that Magistrate accepted surety on 11-5-1985. The order is as under :
"Order
Surety accepted in the sum of Rs. 20.000 (Twenty thousand) and P. R. bond in the like amount.
(Sd.)
A. C./S. D. M. 11-5-1985.
" He has stated in his order dated 12-5-1985 by which he confirmed the bail that respondent produced surety on 12-5-1985. This is a serious case and in my opinion the Magistrate is not fit to hold judicial post. A copy of this order be sent to Government of Sind.
M. B. A. Bail cancelled.
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