2024 P Cr.

L J 977
[Lahore (Multan Bench)]
Before Muhammad Amjad Rafiq, J.
MUHAMMAD ASLAM---Petitioner
Versus
The STATE and others---Respondents
Criminal Revision No. 255 of 2023, decided on 24th October, 2023.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 91 & 351---Word "may" used in S.91 of the Cr.P.C.---Scope---Said
word when read in the light of S.351 of the Cr.P.C. makes it clear that if
the Court deems appropriate it can commit the accused to custody for
the purpose of trial.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 91, 351 & 344---Summoning of accused by Trial Court to face
trial----Ensuring future appearance before the Court----Requirement----
Court may require the accused to furnish a bond with or without
sureties for his future appearance before the Court during trial or
commit him to custody as per S.351 of the Cr.P.C. if evidence is
available against the accused---Such detention shall then be regulated
under S.344 of the Cr.P.C., in order to remand him to custody from time
to time and at an appropriate stage his request for bail under S.497,
Cr.P.C. can be entertained---When a bond is taken under S. 91 of Cr.P.C.
question of bail does not arise because "bail is only for continued
appearance of a person and not to prevent him from committing
certain acts".
James Joseph for Petitioner.
Adnan Latif Sheikh, Deputy Prosecutor General for the State.
Malik Nazar Hussain Ponta, for Respondent No. 2.
Date of hearing: 24th October, 2023.
JUDGMENT
MUHAMMAD AMJAD RAFIQ, J.---This revision petition calls in
question, the order dated 07.06.2023 passed by the learned Additional
Sessions Judge, Muzaffargarh, whereby application filed by the
petitioner for recalling of order dated 07.03.2023 was dismissed.
2. The facts of the case framed Muhammad Imran/respondent No.2
as accused of FIR No. 48/21 dated 08.02.2021 under sections 302/34/109
P.P.C. Police Station Mahmood Kot, District Muzaffargarh, with a joint
role of causing injuries with knife on the person of Muhammad Arif
deceased father of the complainant. Initially, Muhammad Imran was
found innocent during investigation, therefore, he withdrew his
petition for pre-arrest bail on 10.03.2021 from the Court presided by
Additional Sessions Judge/MCTC, Kot Adu. Consequently, his name was
placed in column No. 2 of report under section 173 Cr.P.C. (the Code)
while co-accused Muhammad Tariq was challaned in column No.3 of
said report. Later due to change of investigation, DSP entrusted with
investigation opined against the respondent at his back, which was
intervened through filing a Writ Petition No. 7347/21; upon which
investigation was entrusted to DIG Dera Ghazi Khan and in the
meantime, respondent No.2 had also filed another petition for pre-
arrest bail but withdrew the same on 28.10.2021 from the Court
presided by Additional Sessions Judge, Muzaffargarh because the
investigation was pending but surprisingly a report under section 173
the Code dated 17.03.2023 was prepared at the back of respondent
No.2 showing him as absconder for proceedings under section 512 of
the Code, and it was forwarded to the Court on 18.03.2023, but by the
time trial was in progress and on the application of
petitioner/complainant for summoning of accused/respondent No. 2,
he was summoned to face trial by virtue of order dated 07.02.2023 and
consequent thereupon he was before the Court on 07.03.2023 well
before filing of report styled as under section 512 of the Code. Copies
under section 265C of the Code was delivered to him on the same day
and he was taken on trial.
3. Learned Counsel for the petitioner states that without granting
bail to an accused he cannot be taken on trial while accepting his bond
under section 91 of the Code for his appearance, and was of the view
that section 91 of the Code is only applicable to the proceedings in a
private complaint case. It was controverted by learned counsel for the
respondent by relying on judgments cited in the impugned order.
However, learned DPG has stated that though State has not assailed
that order but respondent No.2 being absconder in a case of murder
must not have been taken on trial just on his executing a bond under
section 91 of the Code. If this practice persists or is given a go, then
offenders would prefer to be at large till their summoning by the Court
for trial, and just by executing a bond they would simply avoid their
arrest, which would affect and hamper the investigation.
4. Heard; record perused.
5. Before dilating upon the legal query involved in the case, it is
necessary to see how the learned trial Court attended the situation.
The order dated 07.03.2023 was when assailed before the learned trial
Court, it while declining the request to recall the same passed the
impugned order dated 07.06.2023 with following observations: -
"Record goes to reveal that initially report under section 173 Cr.P.C.
was submitted to the extent of Tariq accused while placing his
name in column No. 3. Subsequently, on 21.05.2021 report under
section 173 Cr.P.C. was submitted to the extent of accused
Muhammad Imran and Ghulam Hussain while placing their
names in its column No. 2, therefore, said accused persons were
not summoned by the court till that time. On 09.06.2021 charge
was framed only against the accused Muhammad Tariq. On
01.02.2023, examination in chief of two prosecution witnesses
was recorded. In the light of recorded evidence andfinding
sufficient incriminating material against accused Imran he was
also summoned to face the trial vide order dated 27.02.2023.
Upon his first appearance in the court, the court while relying
upon 2017 YLR 1296 (Pesh), 2014 SCMR 1762 and 2015 SCMR 56
directed the accused to furnish his surety bonds under section
91 of Cr.P.C. for his future appearance in the court. The accused
Muhammad Imran is appearing before this court regularly. The
complainant has failed to assign any valid reason for recalling of
order dated 07.03.2023 passed by this court. Hence the petition
in hand is devoid of merits stands dismissed."
6. Responding to the questions raised by learned counsel for the
petitioner that as to whether applicability of section 91 of the Code is
limited to trial in private complaint only or it as a part of sub-chapter-
D of Chapter VI, of the Code, "Other Rules regarding Processes" being
of general nature is applicable to State case as well, the case reported
as "SARWAR and others v. The STATE and others" (2014 SCMR 1762) is
referred, wherein Hon'ble Supreme Court while referring sections 91,
190 and 204 of the Code, has held that after taking cognizance of an
offence by the Court through any of three modes as mentioned in
section 190, followed by commencement of proceedings under section
204, it has power to take bond from the accused under section 91 of
the Code, in order to secure his presence during the trial. This view
also finds its place in following cases reported as "Barkatullah v. The
State and another" (2017 YLR 1296); "Mustafa and others v. The State"
(2009 YLR 1375); Noor Muhammad Ijaz v. Nadeem and 3 others" (PLD
2006 Lahore 227); For reference section 91 of the Code is reproduced
as under:-
91. Power to take bond for appearance. When any person for whose
appearance or arrest the officer presiding in any Court is
empowered to issue a summon or warrant, is present in such
 Court, such officer may require such person to execute a bond,
with or without sureties, for his appearance in such Court.
In the case cited above as 2014 SCMR 1762 while approving case
reported as "Mazhar Hussain Shah v. The State" (1986 P Cr.LJ 2359) and
affirming case reported as "Syed Muhammad Firdaus and others v. The
State" (2005 SCMR 784) and "Reham Dad v. Syed Mazhar Hussain Shah
and others" (Criminal Appeal No.56 of 1986), Hon'ble Supreme Court
has held that it is not necessary that an accused of non-bailable
offence must be granted bail before asking him to execute bond with
or without sureties under section 91 of the Code because provisions of
sections 91 and 497 of the Code are meant for different situations.
"(i) A process is issued to an accused person under section 204,
Cr.P.C. when the court taking cognizance of the offence is of the
"opinion" that there is "sufficient ground" for "proceeding"
against the accused person and an opinion of a court about
availability of sufficient ground for proceeding against an
accused person cannot be equated with appearance of
"reasonable grounds" to the court for "believing" that he "has
been guilty" of an offence within the contemplation of
subsection (1) of section 497, Cr.P.C. Due to these differences in
the words used in section 204 and section 497, Cr.P.C. the intent
of the legislature becomes apparent that the provisions of
section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for
different situations."
In the said judgment, however, it was suggested that on summoning
under section 204 of the Code, accused can apply for his pre-arrest bail
which may or may not be granted depending upon the circumstances
of the case but even in such a case upon appearance of the accused
before the Court, the Court in its discretion can require him to execute
a bond with or without sureties for his future appearance.
7. When a bond is taken under section 91 of the Code, question of
bail does not arise because "bail is only for continued appearance of a
person and not to prevent him from committing certain acts" as held
by Supreme Court of India in a case reported as "Madhu Limaye v.
Sub-Divisional Magistrate, Monghyr and others" (1971 AIR 2486).
Likewise, in a cited case "Sarwar and others v. The State and others"
(2014 SCMR 1762), it was held by Hon'ble Supreme Court of Pakistan
that issuance of warrant, bailable or non-bailable is meant only to
procure attendance of an accused person before the Court and not for
any other purpose.
8. Now I take up the contention of learned DPG that if bond under
section 91 of the Code is accepted without asking for bail in each and
every case of non-bailable offence, then offenders would not join the
investigation rather prefer to be at large till their summoning by the
Court for trial. It is misconception that the Court in every case in an
omnibus manner shall direct the offender to execute a bond on his
appearance before the Court to face the trial. The word "may" used in
section 91 of the Code is when read in the light of section 351 of the
Code, makes it clear that if the Court deems appropriate can commit
the accused to custody for the purpose of trial. Section is reproduced
as under:-
351. Detention of offenders attending Court. (1) Any person
attending a Criminal Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of
inquiry into or trial of any offence of which such Court can take
cognizance and which, form the evidence, may appear to have
been committed and may be proceeded against as though he had
been arrested or summoned.
(2) When the detention take place [....] after a trial has been begun
the proceedings in respect of such person shall be commenced
afresh, and the witnesses re-heard.
This section clearly speaks that even if accused is not under arrest
or upon a summons, the Court is still authorized to detain him if he is
present before the Court and against whom evidence is available of
committing an offence. In a case reported as "The State v. Nathe Khan
and 5 others " (1969 P Cr.LJ 378), when in a commitment proceedings
statement of four witnesses were recorded, a request was made to
summon the sixth accused whose name figured in column No. 2 of the
report under section 173 of the Code. He was summoned accordingly
and directed to execute a bond for his appearance during the inquiry
but after completing committal proceedings, learned Magistrate while
finding evidence against him arrested the accused and sent him to
custody pursuant to section 351 of the Code and then committed him
to trial before the Sessions Court. It was held that when such a person
is included in the category of accused then it becomes imperative on
the part of Magistrate under subsection (2) of Section 351 of the Code
to have examined all the witness afresh. The High Court did not
disturb the detention except declaring the commitment of accused to
trial as illegal.
9. Thus, when an accused is summoned to face the trial, the Court
has two options, either to ask him to execute bond with or without
sureties under section 91 of the Code for his continued appearance
before the Court during the trial or commit him to custody as per
section 351 of the Code if the evidence is available that he has
committed the offence. His such detention shall then be regulated
under section 344 of the Code in order to remand him to custody from
time to time and at an appropriate stage his request for bail under
section 497 of the Code can be entertained.
10. Keeping in view the above discussion, impugned order dated
07.06.2023 passed by learned Additional Sessions Judge,
Muzaffargarh/trial Court calls for no interference as perfect in the
circumstances. Consequently, instant criminal revision is dismissed.
FM/M/134/L Revision dismissed
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