Muhammad Sanwal VS THE STATE ETC.

H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

(JUDICIAL DEPARTMENT)

Cr. Revision No.19 of 2021/BWP Muhammad Sanwal v. The State, etc.

JUDGMENT

Date of hearing 26.01.2021

Petitioner by: Syed Jamil Anwar Shah, Advocate with petitioner.

Complainant by: Malik Javed Akhtar Bhatti, Advocate.

State by: Mr. Javed Iqbal Bhaaya, Assistant District Public Prosecutor.

MUHAMMAD WAHEED KHAN, J.- Through the instant petition, the petitioner has called in question the vires of order dated 21.10.2020 passed by the learned Addl. Sessions Judge, Khairpur Tamewali, whereby post arrest bail granted to him vide order dated 28.07.2020 by the learned Magistrate Section 30, Hasilpur, was re-called by accepting the application u/s 497 (5) Cr.P.C. filed by respondent No.2/complainant in case FIR No.105 dated 10.03.2020 registered u/s 377/292-C PPC at Police Station Khairpur Tamewali, District Bahawalpur.

2.Precisely, the story of the prosecution as set out in the FIR was that on 08.03.2020 at 3:00 p.m., the petitioner, Muhammad Sanwal committed unnatural act/sodomy with Muhammad Nasir son of the complainant aged 9/10 years whereas, co-accused, namely, Tahir Naveed made video of the

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same with mobile phone in the area of Mouza Goth Noor Muhammad situated within the territorial limits of the above said Police Station, hence, this case.

2.After registration of case, the petitioner applied for his pre-arrest bail before this Court but the same was dismissed as withdrawn vide order dated 16.07.2020 and subsequently, he was arrested and thereafter, he applied for his post arrest bail before the learned Magistrate Section 30, Hasilpur, who vide order dated 28.07.2020, allowed the same. Later on, Rab Nawaz complainant assailed the said bail granting order by filing application u/s 497(5) Cr.P.C. before the learned Addl. Sessions Judge, Khairpur Tamewali, who vide order dated 21.10.2020, accepted the same by re-calling order dated 28.07.2020 passed by the learned Magistrate Section 30, Hasilpur, mainly on the ground that the learned Magistrate Section-30 has granted post arrest bail without having jurisdiction in the matter as offence under section 292-C PPC is exclusively triable by the Court of Sessions. So, by filing the instant petition basically the petitioner has assailed the vires of the above said order passed by the learned Addl. Sessions Judge, Khairpur Tamewali instead of seeking pre-arrest bail of the petitioner.

3.In support of instant petition, learned counsel for the petitioner submits that since the case in hand is triable by the Magistrate Section 30, so, by admitting the bail in such offences, the learned Magistrate has committed no illegality; that even otherwise, according to section 6 (3) of the Juvenile Justice System Act, 2018 (XXII of 2018) “The Act” a juvenile accused of a minor or a major offence shall be treated as if he is an accused of commission of a bailable offence and lastly submits that since there is no perversity or legal infirmity

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existed in the order passed by the learned Magistrate Section 30, Hasilpur, so, learned Addl. Sessions Judge, Khairpur Tamewali was not justified to undo the same, whereby post arrest bail granted to the petitioner was re-called.

4.Conversely, learned Assistant District Public Prosecutor assisted by the learned counsel for the complainant vigorously opposed the contentions of the learned counsel for the petitioner and contended that since the learned Magistrate Section-30 was not empowered to conduct the trial in offence u/s 292-C PPC, so, the said forum was not competent to grant bail to the petitioner, hence, the order passed by the learned Magistrate Section 30, can be termed as corum-non-judice. Further contends that both the offences are heinous as defined in clause (g) of Section 2 of the Act, as both are punishable with more than seven years imprisonment and there is no provision in the Act, which declares heinous offence, as bailable one and finally contended that the learned Addl. Sessions Judge has rightly re- called the bail granting order passed by the learned Magistrate Section 30, hence, the instant petition is liable to be dismissed.

5.I have heard the arguments from both sides at length and perused the record with their assistance.

6.It has been noted that while granting bail to the petitioner, learned Magistrate Section-30, Hasilpur observed as under;-

“The perusal of the record reveals that as per application of complainant for registration of case the age of the accused Muhammad Sanwal is mentioned as 11/12 years. The school certificate is also available on record according to which the date of birth of accused is 06.04.2008. So as per available record the age of the accused is about almost 12 years. According to Section

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6(3), of the Juvenile Justice System Act, 2018, the offence committed by Muhammad Sanwal is to be treated as bailable offence. For the convenience the section 6(3) of ibid act is reproduce below:

6.Release of a juvenile on bail....(l) Notwithstanding anything contained in the Code, a juvenile accused of bailable offence shall, if already not released under Section 496 of the Code, be released by the Juvenile Court on bail with or without surety unless it appears there are reasonable grounds for believing that the release of such juvenile may bring him in association with criminals or expose him to any other danger. In this situation the juvenile shall be placed under the custody of a suitable persons or Juvenile Rehabilitation Center under the supervision of probation officer. The juvenile shall not under any circumstances be kept in a police station under police custody or jail in such cases.

(3)Where a Juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence.

In the light of above referred provisions, the offence committed by the accused petitioner is treated as bailable. Hence, bail petition of the petitioner namely Muhammad Sanwal is accepted subject to furnishing of surety bond to the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of this court. Bail application be annexed with the main file.”

Whereas, learned Addl. Sessions Judge, Khairpur Tamewali, while re-calling the bail granting order observed as under;- “The main and pivotal question arising before this court is that whether the learned Area Magistrate was vested with jurisdiction to grant the post arrest bail in case for offence u/s 292-C PPC. As the punishment of section 292-C PPC mentioned in the Major Act (60th Edition) by Mr. M Mehmood is that it shall not be less than 14

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years and may extend up to 20 years alongwith fine not less than 01 million rupees. The lower limit of imprisonment of section 292-C PPC is 14 years whereas the learned Magistrate Section 30 has jurisdiction to award the punishment only up to 07 years. The offence u/s 292-C PPC is exclusively trible by the Court of Session. The learned Duty Magistrate passed the order for granting of bail on 28.07.2020. The police file is silent about the fact that on 28.07.2020 the offence u/s 292-C PPC was deleted because the last diary No.25 dated 26.09.2020 and second last diary No.24 dated 19.07.2020 (both written by SHO P.S Khairpur Tamewali) reveals that the offence u/s 292-C PPC was intact. The police file further depicts that the offence u/s 292-C is still intact and is in field.”

7.First of all, when learned counsel for the petitioner was confronted, about the maintainability of the instant petition in the light of proposition that the order impugned through this petition was assailable by filing a criminal revision, he prayed that the instant petition may be converted and treated as criminal revision, so, while relying upon the ratio decidendi laid down by the august Supreme Court of Pakistan in a judgment reported as “MUHAMMAD MALIK PERVEZ v. THE STATE” (1968 P.Cr.L.J 196), I have no hesitation in coming to the conclusion that this application for bail before arrest was wholly misconceived. Its remedy, if any, lies by revision against the order of the Court concerned cancelling the bail of the petitioner but on the request of learned counsel for the petitioner and for the sake of safe criminal administration of justice, I hereby order to convert and treat the petition for grant of pre-arrest bail (Cr. Misc. No.3478-B of 2020/BWP) into criminal revision.

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8.As far as the other legal and factual controversies involved in the instant case are concerned, I think that following queries/questions are involved in the case in hand;- (i). Whether the offences leveled in the relevant column of FIR are triable by the Court of Sessions or Magistrate Section 30?

(ii)Whether the Court of Magistrate empowered under section 30 of the Code of Criminal Procedure, 1898 (Cr.P.C.) is competent to try the offences of pornography punishable under section 292-C PPC, which was shown as triable by the Court of Sessions in column 8 of the Schedule II attached with the Cr.P.C? and

(iii)Whether the offences mentioned in the relevant column of First Information Report (FIR) i.e. 377 & 292-C PPC could be treated as bailable one in the light of provisions of section 6(3) of the Act ibid?

9.To answer the above quoted queries (i and ii), regarding the jurisdiction of the Court, I observe that although section 377 PPC is shown in column 8 of the Schedule II of the Cr.P.C. to be triable as “Court of Sessions or Magistrate of the first class”. However, in the same column of the Schedule II, offence u/s 292-C PPC is shown as exclusively triable by the Court of Sessions. But according to Section 30 Code of Criminal Procedure, 1898, any Magistrate of first class could be invested with power to try as a Magistrate all offences not punishable with death. To determine this controversy, I have perused Chapter-III of the Code, which has given the description of offences triable by each Court. Section 28 of the Code reads as under;-

“28. Offences under Penal Code.—Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried--

(a)by the High Court,

(b)by the Courts of Sessions, or

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(c)by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.”

So, analogy is derived from class (c) of the above referred Section 28, as offence under section 292-C PPC shown in eighth column of Schedule II is to be triable by the Court of Sessions but Section 30 of the same Code is the exception of the above said principle and create a separate forum of judicial Magistrate enabling with power of Section 30 of the Code, which reads as under;-

“Offences not punishable with death.

Notwithstanding anything contained in Sections 28 and 29, the Provincial Government may invest any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death.”

Meaning thereby that the Magistrate vested with powers under section 30 of the Code is fully empowered/eligible to try all offences not punishable with death. There are other instances where some offences under Pakistan Penal Code, 1860 (PPC) were shown as triable by Court of Sessions but it is apprised to the Court by the learned Law Officer and also observed by this Court that the learned Magistrate Section-30, ordinarily conduct the trial of the same i.e.

Sr. Offence Name Section Primary punishment providing No.

punishment

1.Qatal-i-Khata 319 PPC Diyat and imprisonment upto 05 years.

2.Qatal-e-Khata by rash 320 PPC Diyat and imprisonment and negligent driving upto 10 years.

3.Qatal-i-Bisabab 322 PPC Diyat

4.Attempt to commit Qatl- 324 PPC Imprisonment between 5 to i-Amd 10 years

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5.Itlaf-i-Udw 334 PPC Qisas and imprisonment upto 10 years

6.Iflaf-i-Salahiat-i-Udw 336 PPC Qisas and imprisonment upto 10 years

7.Hurt by Poison 337-J PPC Punishment of the hurt caused and imprisonment upto 10 years

8.Dacoity 395 PPC Imprisonment between 4 to 10 years

10.So under the circumstances, I observe that there is no dispute regarding the jurisdiction of section 377 PPC as two forums i.e. Court of Sessions or Magistrate first class have been provided in the relevant column of the Schedule II but for section 292-C PPC, there is only one forum available and that is Court of Sessions. But since the punishment provided under section 292-C PPC is mentioned as [Imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees.]. Meaning thereby that there is no denial to the fact that all the offences leveled against the petitioner are not punishable with death penalty, so, according to section 30 of the Code as observed above, the learned Magistrate having power of section 30 is fully competent to try the same. Reliance is placed on the judgments passed by the Apex Courts of the country reported as “ALLAH WASAYA and others v. SIKANDAR HAYAT and others” (2012 SCMR 193), “MOHSAN ALI v. ADDITIONAL SESSIONS JUDGE, FAISALABAD and another” (PLD 2013 Lahore 12), “RIZWAN SHABBIR KIYANI v. The STATE and others” (2018 P Cr. L.J 20) and “Syed AZHAR HUSSAIN SHAH and another v. The STATE and others” (2019 SCMR 537).

While highlighting such like issue, the august Supreme Court of Pakistan in the above referred judgment titled as “Syed AZHAR

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HUSSAIN SHAH and another v. The STATE and others” observed as under;-

“According to the Second Schedule to the Code of Criminal Procedure, 1898 an offence under section 324, P.P.C. is triable by a Court of Session and the said Schedule had been appended to the Code by virtue of the provisions of section 28 of that Code whereas section 30 of the said Code clearly provided that notwithstanding anything contained in sections 28 and 29 of the Code the Provincial Government may invest any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death. In the case in hand the trial of the appellant was conducted by a Magistrate invested with such power under section 30 of the Code and, thus, there was no jurisdictional infirmity vis-a-vis the authority of the concerned Magistrate to try the appellant for offences under sections 324, 334 and 336, P.P.C. It may be true that section 34 of the Code provides that the Court of a Magistrate specially empowered under section 30 of the Code may pass any sentence authorized by the law except the sentence of death or imprisonment for a term exceeding seven years but that limitation on the sentence to be passed by a Magistrate only regulates the punishment and not the jurisdiction of the Magistrate to try an offence.”

11.Now adverting to query No.iii, it is observed that according to section 6 (3) of the Act, a juvenile accused of a minor or a major offence shall be treated as if he is an accused of commission of bailable offence, so, inter alia by deriving analogy from this section of the Act, learned Magistrate Section 30, while considering the same as bailable one, admitted the petitioner to post arrest bail. For ready reference, sub-section (3) of section 6 of the Act is reproduced here;- “6. Release of a juvenile on bail....

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(3)Where a Juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence.”

So under the circumstances, I find that the learned Magistrate while admitting the petitioner to bail has read the provision of sub-section (3) of section 6 of “the Act” in isolation and did not go through the other provisions of the same Act, hence, he has misdirected himself by considering the offences leveled against the petitioner as bailable ones.

12.At this juncture, I refer clause (m) in Section 2of the Act, which is reproduced as under;-

“(m) “Major offence” means an offence for which punishment under the Pakistan Penal Code, 1860 (Act XLV of 1860) or any other law for the time being in force is more than three years and up to seven years imprisonment with or without fine;”

Similarly, clause (o) defines the minor offence as under;- “(o) “minor offence” means an offence for which maximum punishment under the Pakistan Penal Code, 1860(XLV of 1860) or any other law for the time being in force is imprisonment up to three years with or without fine.”

So, bare perusal of these two clauses makes it clear that both the offences mentioned in the instant FIR cannot be categorized as bailable ones as section 377 PPC is punishable [with imprisonment for life] or imprisonment of either description for 10 years, and fine. Similarly, [imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees] is provided under section 292-C CPC.

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Under the circumstances, I find that both these offences fall within the category of heinous offences. But as discussed above, the learned Magistrate Section 30 is fully empowered to try both the offences, so, it cannot be termed that the order passed by the learned Magistrate Section 30, was “coram-non- judice” and having been passed without lawful authority.

13.There is no cavil with the proposition that ordinarily superior Courts are hesitant and slow to interfere in orders, extending concession of bail, rather they have shown reluctance to intervene in such like matters. Although, this Court is not pleased with the order passed by the learned Magistrate Section 30, Hasilpur and feels that the said forum was also not justified to treat the offences i.e. 377 & 292-C PPC, as bailable ones, but by taking the guidance from the dictum laid down by the august Supreme Court of Pakistan through judgment reported as “Shahid Arshad v. Muhammad Naqi Butt and 02 others” (1976 SCMR 360), wherein it was held as under;-

“In these circumstances although we are not happy about the order passed by the learned Single Judge of the High Court, we do not think it advisable to interfere with his order at this stage. If at any time any one of the said two respondents misuses the privilege of bail it will be open to the petitioner to approach the High Court for cancellation of bail.”

This principle has been followed by the august Supreme Court of Pakistan in recent pronouncement in case titled as “SHARIF KHAN v. The STATE and another” (2021 SCMR 87). Even otherwise, the learned Addl. Sessions Judge while re-calling the bail granting order dated 28.07.2020 has totally ignored this principle that the consideration for grant of bail and for its cancellation are altogether different. Once bail is granted by the Court of competent jurisdiction, then strong and exceptional

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ground would be required for its re-calling. The rationale behind this principle can be gauged from the salutary judgment passed by the august Supreme Court of Pakistan in case titled as “Tariq Bashir and 05 others v. The State” (PLD 1995 SC 34), followed by recent judgment reported as “Sami Ullah and another v. Laiq Zada and others” (2020 SCMR 1115).

14.It is apprised to the Court that investigation has already been completed and on conclusion of the same, report u/s 173 Cr.P.C. has been prepared and the same has been forwarded to the office of the District Public Prosecutor. Meaning thereby that handing over the custody of the petitioner to the police again is not likely to advance the case of the prosecution in any manner or it seems justified. So, in the light of above discussion, I find that the order dated 21.10.2020, passed by the learned Addl. Sessions Judge, whereby by accepting the cancellation petition filed by the complainant/respondent No.2, post arrest bail granted to the petitioner/accused by the competent forum was cancelled, was uncalled for, thus not liable to be sustained. Resultantly, this revision petition is allowed and the impugned order dated 21.10.2020 passed by the learned Addl. Sessions Judge, Khairpur Tamewali is hereby set aside and order dated 28.07.2020 passed by the learned Magistrate Section 30, Hasilpur is hereby restored.

(MUHAMMAD WAHEED KHAN)

JUDGE

APPROVED FOR REPORTING

JUDGE

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