Can the accused be released on Probation?

PLJ 2012 Lahore 675

Present: Abdus Sattar Asghar, J.

GHULAM QADIR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, PHALIA, DISTRICT MANDI BAHAUDDIN and 14 others--Respondents

W.P. No. 25157 of 2011, decided on 21.2.2012.

Probation of Offenders Ordinance, 1960--

----S. 5(1)(a)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Releasing on probation for period of one year subject to furnishing of surety bond--Challenge to--Trial Court was authorized to pass the order of releasing the accused on probation--Ingredients of--Held: Revision was also lawfully dismissed by Addl. Session Judge keeping in view the fact that same was lodged after about 15 months of passing of impugned order as well as after expiry of probation period successfully completed by accused who had been facing agony of trial for long seven years punishment whereof was imprisonment for life or imprisonment of either description for ten years and fine--In instant case, accused had been facing agony of lengthy process of trial for long seven years besides one year period of probation, therefore, petitioner had no case to invoke constitutional jurisdiction of High Court to interfere with impugned orders lawfully passed by Courts below--Petition was dismissed.   [P. 678] A & B

Ch. Khadim Hussain, Advocate for Petitioner.

Rana Shamshad Khan, AAG for Respondents.

Date of hearing: 21.2.2012.

Order

Ghulam Qadir petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the validity of the order dated 24.6.2009 passed by learned Magistrate Section 30 Phalia District Mandi Baha-ud-Din whereby after recording the confessional statement of accused/Respondents No. 4 to 15 they were released on probation for a period of one year subject to furnishing of surety bond. He has also assailed the order dated 17.8.2011 passed by learned Additional Sessions Judge PhaliaDistrict Mandi Baha-ud-Din whereby his revision against the order dated 24.6.2009 was dismissed.

2. Brief facts leading to this petition are that petitioner lodged an FIR No. 337/2004, dated 30.8.2004, under Section 436/148/149 PPC at police station PahrianwaliDistrict Mandi Baha-ud-Din against the respondents alleging that they in furtherance of their common intention armed with lethal weapons in between the night 29/30.8.2004 set on fire the roof, and door of the room owned and possessed by the complainant. They were held guilty in the police investigation and challaned under Section 173, Cr.P.C. After submission of the challan they were formally charge sheeted by the learned trial Court under Sections 438/148/149 PPC on 27.1.2005 to which they pleaded not guilty and claimed to be tried. However, during the course of trial all the accused confessed their guilt. Learned trial Court recorded their confession in the prescribed manner and thereafter passed the impugned order, which reads below:--

"The above confessional statement of the accused has been recorded. They were given notice that why on the basis said statements, they may not be convicted. Accused in reply to the notice have collectively stated that they have confessed their guilt and requested for lenient view.

2. In view of the frank confessional statement recorded. By the accused the case against the accused is proved. They are first offender. Keeping in view the age and responsibility of the accused. The accused are released on Probation for the period of one year.

3. The accused are released on Probation, subject to execution surety bonds in the sum of Rs. 50,000/- with one surety each in the like amount to the satisfaction of the probation officer for their good behaviour. They shall regularly attend the office of the probation officer as per allocated schedule. File be consigned to record room after necessary completion."

Being aggrieved petitioner assailed the said order through revision lodged on 20.10.2010 after expiry of one year and three months, which was also dismissed by the learned Additional Sessions Judge Phalia on the ground that the same is barred by limitation taking reliance upon Nur Ali and others Vs. The State (PLD 1961 Dacca 239) as well as keeping in view the fact that accused faced agony of trial before the trial Court for long seven years and also have completed their probation period successfully, therefore, circumstances did not permit to interfere in the order of learned trial Court at belated stage.

3. It is argued by learned counsel for the petitioner that the petitioner was in physical possession of the disputed land owned by his minor sons; that he was illegally dispossessed by Respondents No. 2 to 7 and that the police report comprising wrong facts due to political pressure without proper investigation cannot be made basis for dismissal of the complaint; that the impugned order of dismissal of the complaint is against law and facts, arbitrary, perverse, untenable in the eye of law and liable to set aside.

4. I have given patient hearing to learned counsel for the petitioner, learned AAG and gone through the record.

5. At the outset it will be expedient to reproduce hereunder the provision of Section 5 of the Probation of Offenders ordinance, 1960 for ready reference, which reads below:--

5. Power of Court to make a probation order in certain cases.--(1) where a Court by which--

(a)        any male person is convicted of an offence not being an offence under Chapter VI or Chapter VII of the Pakistan Penal Code or under Sections 216A, 328, 382, 386, 387, 388, 392, 393, 397, 398, 399, 401, 402, 455 or 458 of that Code, or an offence punishable with death or imprisonment for life, or

(b)        any female person is convicted of any offence other than an offence punishable with death.

Is of opinion that, having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the Court may for reasons to be recorded in writing, instead of sentencing the person at once make a probation order, that is to say, an order requiring him or her to be under the supervision of a probation officer for such period, not being less than one year or more than three years, as may be specific in the order:

Provided that the Court shall not pass a probation order unless the offender enters into a bond, with or without sureties, or commit no offence and to keep the peace and be of good behaviour during the period of the bond and to appear and receive sentence if called upon to do so during that period:

Provided further that the Court shall not pass a probation order under this section unless it is satisfied that the offender or one of his sureties, if any, has fixed place of abode or a regular occupation within the local limits of its jurisdiction and is likely to continue in such place of abode or such occupation, during the period of the bond.

(2) While making a probation order, the Court may also direct that the bond shall contain such conditions as in opinion of the Court may be necessary for securing supervision of the offender by the probation officer and also such additional conditions with respect to residence, environment, abstention from intoxicants and any other matter which the Court may, having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law-abiding citizen.

6. Careful appraisal of the record transpires that offence under Section 438, PPC does not fall within the exception provided under Section 5(1)(a) of the Ordinance ibid, therefore, learned trial Court was authorized to pass the impugned order of releasing the accused on probation. Impugned order also maintains the vital ingredients in accordance with the law. I do not find any legal infirmity in the impugned order passed by the learned trial Court. Simultaneously, the revision is also lawfully dismissed by the learned Additional Sessions Judge keeping in view the fact that the same is lodged after about 15 months of passing of impugned order as well as after expiry of probation period successfully completed by the accused who have been facing agony of the trial for long seven years in the offence under Section 438 PPC punishment whereof is imprisonment for life or imprisonment of either description for ten years and fine. Needless to mention that the word `or' used before the imprisonment for either description for ten years is to be interpreted in the benefit of the accused to exclude the offence under Section 438, PPC from the exception envisaged under Section 5(1)(a) of the Probation of Offenders Ordinance, 1960. In the instant case accused have been facing agony of lengthy process of trial for long seven years besides one year period of probation, therefore, petitioner has no case to invoke the constitutional jurisdiction of this Court to interfere with the impugned orders lawfully passed by the learned Courts below. This petition having no merit is, therefore, dismissed.

(R.A.)  Petition dismissed