17/05/2024
P L D 2014 Supreme Court 458
Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ
MUHAMMAD SHAKEEL---Petitioner
Versus
The STATE and others---Respondents
Criminal Petition No.203-L of 2014, decided on 20th March, 2014.
(Against the order dated 4-2-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.158-B of 2014)
(a) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail application-Format---Shorter format for deciding a bail application that was to be adopted by all courts below provided by the Supreme Court.
Supreme Court observed that in future, unless the necessities of the case warranted otherwise, the following shorter format for deciding an application for bail may be adopted by all the courts below:
(i) Without reproducing the particulars and contents of the F.I.R. in detail an order should state directly and briefly the allegation levelled by the prosecution against the accused-petitioner. The details and particulars of the F.I.R. would already be available in the application for bail itself or the same could be gathered from a copy of the F.I.R. attached with such application.
(ii) The details of the arguments addressed by the learned counsel for the parties may not be recorded in the order. It is to be presumed that the court concerned must have heard and attended to all the arguments addressed and the submissions made before it and if one was to look for such arguments the same may be found mentioned in the application for bail. It may be well to remember that an order granting or refusing bail was merely an interim order and the same was not to be equated with a judgment.
(iii) The order should state the reasons for granting or refusing bail to the accused-petitioner as briefly and clearly as possible in the following format:
(a) -------
(b) -------
(c) -------
(d) -------
(iv) The order should record the terms of bail, if applicable.
Supreme Court emphasized that brevity was the soul of wit. In the present case, Judge had indulged in the luxury of writing as many as twelve pages for dismissing the petitioner's application for bail which matter was merely an interim matter pertaining only to regulating custody of the petitioner during his trial. The matter could have been decided by the Judge through a much shorter order saving the Court's precious time for attending to other similar matter of urgency.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Non-attribution of specific injury---Generalized and collective allegation---Non-recovery of incriminating article---Investigating officer opining accused to be innocent---Effect---Allegation against the accused was that he and his co-accused had resorted to firing at the deceased---Accused had not been attributed any specific injury and the allegation levelled against him in the F.I.R. was couched in generalized and collective terms---Nothing had been recovered from the custody of accused during the investigation so as to confirm the allegation of firing levelled against him---Investigating officer had opined that accused was innocent as the allegation levelled by the complainant party against him was not established---Site-plan of the place of occurrence showed that the complainant and eye-witnesses could not have seen the incident, particularly when it had never been claimed by them in the F.I.R. and in their statements before the police that they had followed the deceased and the accused party to the place of occurrence---Investigation of the case had already been finalized and a challan had been submitted, thus, physical custody of the accused was not required for the purposes of investigation---Case against accused called for further inquiry into his guilt---Petition was converted into appeal and same was allowed, consequently petitioner-accused was admitted to bail---Supreme Court observed that, in the present case, Judge of High Court had indulged in the luxury of writing as many as twelve (12) pages for dismissing the accused's application for bail which matter was merely an interim matter pertaining only to regulating custody of the accused during his trial; that the matter could have been decided by the Judge through a much shorter order saving the Court's precious time for attending to other similar matters of urgency.
Rana Shakeel Ahmad Khan, Advocate Supreme Court for Petitioner.
Ch. Zubair Ahmad Farooq, Addl. Prosecutor-General, Punjab for the State.
Adnan Shuja Butt, Advocate Supreme Court for Respondent No.2.
Date of hearing: 20th March, 2014.
ORDER
ASIF SAEED KHAN KHOSA, J.---Cricket and judicial decision making may not have much in common except that there is an umpire in the game of cricket deciding 'appeals' and judging various issues arising during the progress of the game and there may be some judges sitting in their courtrooms who may sometimes be tempted to hit the ball over the boundary rope. Likeness of a judge to an umpire in a game of cricket has already been alluded to by none other than Lord Denning in his judgment delivered in the case of Jones v. National Coal Board [(1957) 2 Q.B. 55]. His lordship had observed that "Even in England, however, a Judge is not a mere umpire to answer the question "How's that?". His object, above all, is to find out the truth, and to do justice according to law; …….". Another common factor between the two is that both cricket and judicial decision making are played/practised by gentlemen, and now by noble ladies as well. All of us know that cricket has moulded itself over time and has adapted to the requirements of the changing times but judges, being conservative by nature and tradition, have so far been slow in such transformation or adaptation. Keeping pace with the requirements of the modern times as well as constraints of time concomitant thereto a five-day test match in cricket is giving way to a one-day match and even to a blitz called T20 and although Garry Sobers, Hanif Muhammad and Sunil Gavaskar are still idolized for their marathon efforts and long hauls in batting yet the present day heroes are the likes of Shahid Afridi who, notwithstanding the shots they play or the techniques they employ, are applauded for their obsessive, if not neurotic, hitting and for scoring as many runs as possible within the shortest possible time. As against that the judges are generally still sticking to their old and archaic styles of writing their orders and judgments which is causing a disconnect between the judiciary and the litigant public because the decision making is slow, long and out of pace with the influx of cases asking for decision, if not out of sync with the expectations of majority of the stakeholders. We have found the present case to be a classic example of such a disconnect as despite about one hundred and eighty thousand cases pending and clamouring for decision before the Lahore High Court, Lahore the learned Judge-in-Chamber of the said Court had indulged in the luxury of writing as many as twelve pages for dismissing the petitioner's application for bail which matter was merely an interim matter pertaining only to regulating custody of the petitioner during his trial. We feel that the matter could have been decided by the learned Judge-in-Chamber through a much shorter order saving the Court's precious time for attending to other similar matters of urgency.
2. In the background of this Court's accumulated experience over a long period of time and the wisdom gathered through the same we feel that time has come for breaking away from the attitudes and approaches of the past and for out of the box solutions to situations which apparently have no traditional remedies. In short, we feel that time has come for a game changer and the present petition may be utilized as the watershed. It has appeared to us to be safer to start the proposed judicial repositioning with decisions of applications for bail and then to build on the same on the basis of the experience gathered. With this object and motivation in mind we propose that in future, unless the necessities of the case warrant otherwise, the following shorter format for deciding an application for bail may be adopted by all the courts below:
(i) Without reproducing the particulars and contents of the F.I.R. in detail an order should state directly and briefly the allegation levelled by the prosecution against the accused-petitioner. The details and particulars of the F.I.R. would already be available in the application for bail itself or the same can be gathered from a copy of the F.I.R. attached with such application.
(ii) The details of the arguments addressed by the learned counsel for the parties may not be recorded in the order. It is to be presumed that the court concerned must have heard and attended to all the arguments addressed and the submissions made before it and if one is to look for such arguments the same may be found mentioned in the application for bail. It may be well to remember that an order granting or refusing bail is merely an interim order and the same is not to be equated with a judgment.
(iii) The order should state the reasons for granting or refusing bail to the accused-petitioner as briefly and clearly as possible in the following format:
(a) ……………………
(b) ……………………
(c) ……………………
(d) ……………………
It may not be lost sight of that brevity is the soul of wit.
(iv) The order should record the terms of bail, if applicable.
Adopting the said format we now proceed to decide the present petition.
3. Through this petition Muhammad Shakeel petitioner has sought leave to appeal against the order dated 4-2-2014 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 158-B of 2014 whereby post-arrest bail was refused to him in case F.I.R. No. 274 registered at Police Station Hanjarwal, District Lahore on 20-4-2012 in respect of offences under sections 148, 302 and 149, PPC.
4. After hearing the learned counsel for the parties and going through the record we have observed as follows:
(a) The allegation leveled against the petitioner in the F.I.R. was that at the stated date, time and place he and his co-accused had resorted to firing at the deceased but the petitioner had not been attributed any specific injury and the allegation levelled against him in the F.I.R. was couched in generalized and collective terms.
(b) Admittedly nothing had been recovered from the petitioner's custody during the investigation so as to confirm the allegation of firing levelled against him.
(c) The investigating officer had concluded that the allegation levelled by the complainant party against the petitioner did not stand established during the investigation and as a consequence of such conclusion the petitioner had been opined to be innocent.
(d) According to the F.I.R. the complainant and the other eye-witnesses mentioned therein were available at the relevant time just outside the complainant's house but a bare look at the site-plan of the place of occurrence shows that the complainant and the eye-witnesses could not have seen the incident in issue while standing outside the house of the complainant, particularly when it had never been claimed by them in the F.I.R. and in the statements made before the police under section 161, Cr.P.C. that they had followed the deceased and the accused party to the place of occurrence.
(e) The investigation of this case has already been finalized and a Challan has been submitted and, thus, physical custody of the petitioner is not required at this stage for the purposes of investigation.
5. For what has been observed above we have found the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and consequently the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.1,00,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.
MWA/M-16/S Bail granted.
