Talat Hussain VS Aqib Mehmood

t Form No: HCJD lc-l2l

ORDER SHEET

IN THE ISLAMABAD HIGH COURT. ISLAMABAD

JUDICIAL DEPARTMENT

Crl. Misc. No.461-M 12019 Talat Hussain Vs Aqib Mehmood and another

S. No. of Date of Order with signature of Judge and that of parties order/ order/ or counsel where necessary. proceedinqs Proceedinss

15.07.2019 Raja Muhammad Shafat Khan, Advocate for the petitioner.

Malik Awais Haider, State Counsel.

Shah Nazar S.I.

AAMER FAROOO. J. Through the instant petition the petitioner seeks a direction to the District Superintendent Jail Adyala, Rawalpindi to release the petitioner.

2.Brief background of the case is that the petitioner applied for bail in case FIR No.50 dated Zg.Ol.ZOlB under Sections 324,34, 337 A(iii), 337F(ii) , 337L(ii), 336 & 75 PPC registered with Police Station, Koral, Islamabad. The referred petition was allowed by this Court vide order dated 17.06.2019. In the petition as well as order certain offences which were not originally in the FIR but subsequently added, were not mentioned, therefore, the jail authorities did not release the petitioner. Hence, this petition.

3.The learned counsel for the petitioner contended that Sections 337C and 337L(i) PPC were added subsequently hence were not mentioned in the petition and bail granting order dated 17.06.2019. It was further contended that once bail is granted in an FIR the mentioning of all the offences/provisions is not essential. In support of his contentions learned counsel placed

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reliance on the case titled Mst. Shahida Parveen v. The State and another (1995 MLD 1082), Abdul Shakoor v. The State (2004 Cr.LJ 399) and Muhammad Alam v. the State (2018 PCT.LJ 837).

4.The learned State Counsel inter alia contended that the offences 337C and 337L(i) PPC were added subsequently and since the same were not mentioned in the order passed by this Court, hence the petitioner needs to obtain the bail with respect to the said offences as well.

5.Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record perused with their able assistance.

6.The petitioner Talat Hussain was admittedly granted bail by this Court in FIR No.50 of 2018 dated 29.01.2018 vide order dated 17.06.2019, however, few offences i.e. 337L(i) and 337C were added subsequently and not part of the original FIR. In support of his contention that the bail once granted in an FIR is a valid bail regardless of the fact that all the offences are not mentioned, learned counsel placed reliance on the case titled Mst. Sh Parveen v. The State and another (1995 MLD 1082). In the referred judgrnent the Hon'ble Lahore High Court observed as follows: "5. Once a person has been granted bail by a Court and ordered to be released forthwith, his further detention by the jail authorities would actually be illegal detention for which citizens would be perfectly justified to sue for damages. The specification of the penal provision in the F.I.R. or any related investigation paper does not control the contents of the narration of the F.I.R. I and the substance thereof, h is, therefore, directed that in future all jail authorities be careful in this matter because once a Court admits a person to bail then that person ceases to be in the custody of the jatl authorities and is in

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the custodia legis of the Court. This application ,s accordingly accepted and disposed of,"

7.Different view was taken in the subsequent decision of the Hon'ble Lahore High Court in case titled Abdul Shakoor v. The State (2004 Cr.LJ 399) wherein it was observed that where inadvertently one of the offence has not been mentioned in the bail granting order, subsequent order is required for the purpose of bail. The Court in the said order allowed the bail in respect of the additional offences as well as it had heard the case on merit. Similar view was taken by the Hon'ble Baluchistan High Court in case titled Muhammad Alam v. the State (2018 PCT.LJ 837). The matter was considered in detail by the High Court of Utttarakhand (India) in case titled Babu Khan and 5 others v. State of Uttarakhand and another (2012(I)N.C.C.409). In the referred judgment it has been held as follows: "8. A careful reading of the ratio laid down by this Court in Jomil v. State of Uttaranchal (supra) reveals that thts Court too did not lry down that the accused persons should be enlarged on the same bail bonds and sureties for any grcver offence whatsoever it may be, but the Court was cautious enough to use the words "which though seems to be graver....". The right interpretation of this phrase ought to be that if an added offence seems to be grqver , then the lower Court should not ask the accused person for fresh bail application and, if the offence is certainly graver and triable by the Court of Sessions, then this observation of the Court made in Jamil v. State of

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Uttaranchal should not be taken by the courts below as a mandate to grant bail to the accused persons on the same bail bonds and sureties which theyfurnished earlier.

9.If the logic that a person once released on bail need not surrender any further to seek fresh bail for the added offence rs accepted for every eventuality, then it will create total anarchy in the society. If this logic z's allowed to prevail, it might be possible that the inJluential persons, at the strength of their might and influence, will manage not to get the case registered at the police station against them as per the real nature of the incident and will seek the bail promptly in all the bailable sections from the Court of Magistrate and, immediately after obtaining the bail in all the bailale sections fro* the Court of Magistrate, they will let loose the Investigation Officer or the Magistrate to covert the cqse as per the real nature of the incident. By doing so, they will manage not to see the frt" of the lockup even for a moment in disregarded of the heinousness of the crime. "

8.A careful reading of the abovementioned judgments shows that only in Mst. Shahida Peryeen's case supra, it was held by the Hob'ble Lahore High Court that once bail is granted in an FIR it constitutes a valid bail for all the offences even if they are not mentioned in the FIR or bail granting order. However, the other judgments of the Hon'ble Lahore High Court, the Hon'ble Baluchistan High Court and even the

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judgments from Indian jurisdiction are to the effect that a specific bail needs to be obtained with respect to the offences not mentioned in the bail granting order. I intend to agree with the latter view and do not approve the ratio in 1995 MLD 1082. The High Court of Uttarakhand has dealt with the matter in detail and has lucidly highlighted the practical misuse of the bail granting order in case all the provisions with respect to which the petitioner has been imputed are not mentioned, hence a bail granting order needs to mention all the provisions under which the petitioner/accused is being investigated or is charged with.

9.In the instant case the matter was heard in detail on merit and bail was granted to the petitioner. It is just and proper that the bail is considered to be granted in the offences as well which were inadvertently not mentioned in the bail granting order. Hence, bail is also allowed to the petitioner in FIR No.50 ibid to the extent of Sections 337C and 337 L (i) PPC.

10.In view of the above, the instant petition is allowed and the petitioner is admitted to bail with respect to the referred offences as well. There shall be no order as to sureties as sureties ordered to be furnished in Crl. Misc. No.354-B 12019 vide order dated 17.06.2019 would be considered sufficient for the present application as well.

(AAw

JUDGE

Approvedfor reporting

.M,NAVEED'

JUDGE

Uploaded By :- Engr. Umer Rasheed Dar