Mst. Sabiha Vs Muhammad Asim alias Asim etc.

Judgment Sheet

PESHAWARHIGHCO URT. BENCH

(Judicial Department)

Cr.Misc.BCA No.25-8D024

Sabiha v.

Muhammad Asim alias Asim, etc.

ORDER

For petitioner: Mr.Anwa o Advocate

For respondent: Mr. Imran Khan Dhirma Khel Advocate For State: Mr.N eiibUllah..d.d G.

Date of hearing: 16,01.2025

rll,;** Dr. Khurshid lobal. J.-

l. By this single opinion, I would take up for disposal the bail cancellation applications # 25, 26, and 96-8 of 2024 (Cr.Misc.BCAs), as all of them involve identical questions of law and fact, besides arising out of the same FIR.

2.The brieffacts leading to the filing ofthese bail cancellation petitions ate that Asim and Yasir ("the respondents") were accused of committing fire, with murderous intention, at Wajid Khan ("the complainant") and his mother Sabiha Bibi ot 13.12.2022, at 07;45 hours, in consequence of oral altercation. As a resulg both the complainant and his mother ('the victim") were hit and injured' This led to the registation of FIR No.1356, dated 13.12.2022, under sections 324 I 34 PPC, at Mandan police station in Bannu.

3.Subsequently, the respondent Asim was arrested, but later released on bail by the learned Additional Sessions Judge-II, Bannu, vide orders, dated 13.03.2024. The victim, then, moved this Court by filing the instant BCA # 25-B/2024, asserting that she was not even arrayed as a respondent to the bail petition, and the bail was allowed (Ghrfoor Zrmrn) (S,B.) Ilon'blc Mr. Justtcc Dr. KhuEhid Iqbrl

to the respondent without issuing her any notice or granting her an opportunity of being heard. Essentially, she has filed the petition taking a legal ground under the fifth proviso to section 497(l) Cr.P.C. Similarly, the complainant also filed a similar BCA # 26- 8D024, seeking the cancellation of the bail on merits, as he did not deny the issuance of notice to him.

4.Pertinently, during the pendency of both these BCAs, the respondent Yasir was also arrested, and was granted bail by the leamed Additional Sessions Judge-II, Banng vide orders of 12.11.2024, against which the complainant and the victim jointly filed BCA # g6-8t2024.

5.Arguments heard. Record perused.

6.The main thrust of the arguments put forward by the leamed counsel for the victim is that she was not even arrayed as a respondent in the bail petition submitted by the respondent Asim, and before bail was allowed to both the respondents, the victim was not issued any notice in either of the bail petitions, which was mandatory under the fifth proviso to section 497(l) Cr.P.C. This, he added, is a clear manifestation of the fact that neither the legal requirement was fulfilled, nor was the victim provided an opportunity of being heard. In support of his arguments, the leamed counsel produced and relied on the judgments rendered in Muhammad Ashruf v. Duatriyarrron and another (PLD f993 Peshawar l5l\, Mst Ramboil Bibiu Mtr Alam and another (PLI) 1997 Peshawar 173), Muhammad Shafiq* Muhammad Mb Khan (2004 PCrIJ 968 Peshawar), md Fazalat Rehman v. tholid and 02 others (2009 YLR 1818 Peshowar).

7.Contrarily, the leamed counsel for the respondents argued that since the complainant was arayed as a respondent in the bail petition submitted by the respondent Asim, with notice being issued to him, the mere fact that his mother, the victim, was not arrayed as a respondent is no ground for the cancellation of the bail' The (chrfoor ZrmrD) (S.8.) Hotr'bl. Mr. Jutdcc Dr. Khuruhid lqb.l

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submission of the leamed counsel is grounded in the fact that a reasonable opportunity of hearing was provided to the prosecution, and the issuance of notice to each and every injured individual, especially when it comes to the closest degree of between the persons injured, is not under all circumstances necessary. The grounds for the grant of bail and those for its cancellation are entirely different, and once bail is granted by a competent court, it cannot be cancelled unless it is shown that the accused has misused it in any manner, the leamed counsel stressed, arguing that since the respondents have never misused the concession of bail in any manner, the petitions moved merit dismissal.

8.I find that the issuance ofnotice to the prosecution before a person accused of an offence is released on bail is not novel in criminal Rather, it is a of the fiftr proviso to sub-section (l) of section 497 Cr.P.C., which I would reproduce hereunder for ready reference:

Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released.

9.The language of the above quoted provision of law is plain and well conceivable, therefore, it leaves nothing ambiguous' It clearly postulates that a person accused of an offence, referred to in sub-section (l) of section 49't. CI.P.C., shall not be released on bail unless the prosecution has been given prior notice. The use ofthe word 'shall' therein indicates the mandatory nature of its import, obligating the Cour! seized of a bail mattet, to issue notice as aforesaid before the accused is released on bail. It is pertinent to note that this provision does not provide any way for the Court seized of the matter to dispense with the mandatory of issuing notice in cases involving any relationship between the victims. And if such were the intentioru the Legislature would have provided it expressly or by necessary implication' However, such is not the case.

(Gbrfoor zrmrn) (S,B.) Hon'blc Mr. Jultic! Dr' Khurshid lqbrl

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I am afraid, ifthe argument put fonvard by the learned counsel for the respondents were to be accepted-where he contended that since the complainant was issued notice, the issuance of notice to the victim was not necessary-theq this would tantamount to adding something to the above provision, which is not permissible under the law.

10.This being an attempted murder case, where hurt has been caused to the victim as well. Could the complainant compound the offence on behalf of the victim if she is alive, major, sane, and does not consent to the compounding? The answer is emphatically no. This is because the schedule to section 345 Cr.P.C. expressly and exclusively vests the right to compound an offence in the person against whom the offence was committed, provided such person is alive, major, and sane. And could the complainant waive the right of qisas, arsh, or daman on behalf of the victim if the victim is alive, major, sane, and does not consent to such waiver? The answer to this question, too, is emphatically no. This is because the law exclusively confers these rights upon the victim. When the answets to both of these questions are in the negative, then, on the same p{nciple and analory, the right to be issued notice and to be heard before the grant of bail must also vest in the person against whom the offence was committed, and not in the complainant, who has lodged the report, regardless of how close the relationship between them may be. These are the personal rights of the victim, and the victim alone, provided such victim is alive, major, and sane.

11.Furtherrnore, guidance as to the mandatory requirement of issuing notice to the victim in bail matters can also be gleaned from what has been ruled in the judgments produced and relied upon by the leamed counsel for the petitioners. In the case of Mahammad Ashrafv. Duaniyaman and another (PLD 1993 Peshawar 151), the Court ruled that under the new dispensation of criminal justice in the context of the offences covered by the Qisas and Diyat Ordinance, 1990, both the State and the are entitled to (Ghrfoor Zrmstr) (S.8.) Hon'blc Mr. JusticG Dr, xhurrhid lqb.l

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notice before any order is passed favorable to an accused in the case ofbail. In this case, no notice was issued to the Public Prosecutor or the complainant, and the bail granted to the accused was cancelled. Similarly, in Mst Ranbail Bibi u Mir Alam and another (PLI) 1997 Peshawar 173), the complainant was not made a respondent ln the bail petition, where the Court held that after the enforcement of the 1990 Ordinance, the complainant is entitled to notice in the bail petition of an accused. Likewise, in Muhammad Shafiq v. Muhommad Mir Khan (2004 PCrIJ 968 Peshawar), this Court unequivocally observed that in murder and hurt cases, the issuance of notice to the victim is necessary even at the bail stage. The last in the series is the case of Fawlur Rehman u Khalid and 02 others (2009 YLR 1818 Peshawar). In this case, the Court on the authority of Muhamnad Ashrufs case, elaborately addressed this proposition as under:

3.Since the introduction and implementation of Islamic concept of dispensation of Justice in criminal cases, wherein hurt Qatl-e-Amd is involved, the right of compensation being a personal right of the victim or descendants of deceased victim, the superior Courts arc of the consistent view that they have s vested right to be heard before an order favour also to an accused is passed. The theory was originally propounded by Mr. Justice Muhammad Bashir Khan Jehangiri, in the case of Muhammad Ashraf v. Duarriyaman and another (PLD 1993 Peshawar 151) and subsequently this view was to in different judgments, like in the case of Muhammad Shafiq v. Muhammad Mir Khan (2001 PCT.LJ 968 Peshawar) wherein the short but leading judgnent delivered by this Court is reproduced below:

Cancellation of bail granted to respondents, namely, Muhammad Mir Khan, Shafiq-ur-Rehman and Sher Zaman ln case f,'.I.R. No.29, dated 12-2-2003 of Pollce Station Naurang under section 302/34, P.P.C, is sought mainly on the ground that the learned Sessions Judge, Lakki has granted bail to the respondents without notice to the complainant

Perusal of the record does support the grievance of the petitioner. It is by now well-settled that in murder/hurt cases (Ghrfoor Z.mrtr) (S.B) Hoo'ble Mr. Justice Dr. Khmhid Iqbd

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notice is to be given to the aggrieved/complainant prrty even at bail stage. Long ago in case of Abdur Rahin v. Khan f,'araz and others dated 6-4-2002 the bait granted by the same Sessions Judge, Lakki was cancelled on the ground that notice was not given to the complainant and injured party. It apperrs that the learrred Sessions Judge is still following his own notion and has tumed blind eye to the settled proposition of law. The bail granted to the respondents is hereby recalled and the bail application submitted by them is entrusted to the leamed Additional Sessions Judge, Lakki Manrat, where the learned counsel for both the parties undertake to rpperr on 25-10-2003 and after hearing either side should decide the case in accordrnce with law. The application stands accepted.

12.What the above legal discourse leads this Court to conclude is that the issuance of a notice to the State and the victim is mandatory before a pemon accused of an offence, as aforesai{ is released on bail. In the instant case, the respondent Asim did not even make the victim a respondent in the very bail petition, let alone issue or serve notice on her or provide an opportunity of being heard by the Court ganting bail. Consequenfly, the bail granting order, dated 13.03.2024, appears to be against the express provisions of law and the principles enunciated in the above referred cases. Similarly, in the second bail petition submitted by the respondent Yasir, the victim was, though made a respondent. However, she was not issued any notice. And even today, the learned cormsel for the respondents was asked whether he could produce any record showing that she was issued a notice before the bail was allowed. The leamed coumel produced the order sheets of the Court granting bail. However, a perusal of these order sheets frrther revealed that there is no order directing the issuance of notice to the victim. It follows that the fact remained that no notice was served upon the victim. It is, therefore, quite obvious that in this case, too, the bail was granted without issuing notice to the victim. Hence, in this case, the bail gfanting order, dated 08.10.2024, is also found to be against the express provisions of law and the principles laid down for the purpose.

(Ghefoor Zrmu) (S.B.) Hon'blc Mr. Justtcc Dr. Khurshid Iqbrl

13.For the reasons I have set out above, this Court is convinced to allow these petitions and cancel the aforesaid bail granting orders. As a result, both respondents be taken into custody and commiued to judicial lockup as ifthey have never been released on bail. However, both of them shall be at liberty to move the competent Court for the grant of bail after making both the complainant and the victim as respondents in the bail petition, where the same shall be decided afresh in accordance with law after the issuance of notice to the State, the complainant and the victim.

14.As the bail granting order, dated 13.03.2024, of the respondent Asim is cancelled on legal ground by allowing this BCA, the connected BCA# 26-812024, seeking cancellation of his bail on meriq turns infructuous and is, therefore, dismissed.

15.The foregoing are the reasons for my short order ofeven date.

16.Before parting with this order, it may not be out of context to mention that the pnmary duty of the court is to serve justice and to safeguard the legally guaranteed rights ofall who are before it. It has been repeatedly observed in numerous cases that legal heirs in murder cases, and victims in hurt cases, are not arayed as respondents in bail applications presented before this Court as well as the subordinate courts. Consequently, when the cour( being seized of such matters, deems it fit to graot bail, such orders are often passed without issuing notice to the legal heirs or the victims, as the case may be. This practice contavenes the spirit ofthe above quoted provision of law and the principles consistently laid down by the superior courts on the subject. The present BCAs is an example of such contraventions. In one case, the victim was not arrayed as a respondent in the bail application, and in the other case, no notice was issued to the victim before the bail was granted. In the circumstances, it is expedient to direct the subordinate courts and the institution branch to ensure that bail applications are received only after the legal heirs in murder cases, and victims in hurt cases, have been properly arrayed as respondents. It is expected that the learned (Ghrfoor Zrmr!) (S.B) Hon'blc Mr. Justice Dr. Nhurrbid Iqbrl

Members of the Bar will ensure the compliance as aforesaid. The office is directed to communicate a copy of this order to the subordinate courts and the learned Members of the Bar for compliance.

Announced

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(Ghafoor Znmrn) (S.8.) Hor'ble Mr. Julticc Dr. KhuBhid Iqbd