IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Mian Saqib Nisar 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Sh. Azmat Saeed 
Mr. Justice Iqbal Hameedur Rahman 
Mr. Justice Dost Muhammad Khan 
 
 
Criminal Appeal No. 19 of 2012 
(Against the order dated 05.07.2011 passed by the Lahore High Court, Lahore in 
Criminal Miscellaneous No. 7821-B of 2011) 
 
Sarwar, etc.                                                               … Appellants 
versus 
The State, etc.   
 
 
 
                   … Respondents 
 
 
Criminal Appeal No. 32-L of 2012 
(Against the order dated 08.03.2012 passed by the Lahore High Court, Lahore in 
Criminal Miscellaneous No. 470-B of 2012) 
 
Iftikhar Ahmed                                                            … Appellant 
versus 
The State, etc.                                                        … Respondents 
 
 
 
 
Criminal Appeal No. 82 of 2014 
(Against the order dated 23.12.2013 passed by the Lahore High Court, Rawalpindi 
Bench, Rawalpindi in Criminal Miscellaneous No. 1783-B of 2013) 
 
Nadeem Khan                                                              … Appellant 
versus 
The State, etc.                                                        … Respondents 
 
 
Criminal Petition No. 397 of 2013 
(Against the order dated 30.09.2013 passed by the Lahore High Court, Multan 
Bench, Multan in Criminal Miscellaneous No. 2088-B of 2013) 
 
Shaukat Ali                                                                 … Petitioner 
versus 
The State, etc.                                                        … Respondents 
 
 
Criminal Petition No. 455 of 2013 
(Against the order dated 10.09.2013 passed by the Lahore High Court, Multan 
Bench, Multan in Criminal Miscellaneous No. 2619-B of 2013) 
 
Mukhtiar Hussain                                                        … Petitioner 
versus 
Allah Ditta, etc.                                                      … Respondents 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
2
 
For the appellants: 
Mr. Azam Nazir Tarar, ASC 
with appellants No. 3 to 5 in person (in 
Cr. A. 19 of 2012) 
Mr. Azam Nazir Tarar, ASC 
with the appellant in person 
(in Cr. A. 32-L of 2012) 
Mr. Ansar Nawaz Mirza, ASC 
With the appellant in person  
(in Cr. A. 82 of 2014) 
 
For the petitioners: 
 
In person. (in Cr. P. 397 of 2013) 
Nemo. (in Cr. P. 455 of 2013) 
 
For the complainant: 
Mian Muhammad Shafiq Bhandara, ASC 
(in Cr. A. 19 of 2012) 
 
Raja Abdul Rehman, ASC 
 
Syed Ali Imran, ASC 
 
(in Cr. A. 32-L of 2012) 
 
Nemo. (in Cr. A. 82 of 2014) 
 
Mr. Nazir Ahmed Bhutta, ASC 
 
(in Cr. P. 397 of 2013) 
 
N.R. (in Cr. P. 455 of 2013) 
 
For the State: 
Mr. 
Asjad 
Javaid 
Ghural, 
Additional 
Prosecutor-General, Punjab 
 
Ch. Abdul Waheed, Additional Prosecutor-
General, Punjab 
 
(in all cases)  
 
Date of hearing: 
 
 
29.09.2014 
 
JUDGMENT 
 
Asif Saeed Khan Khosa, J.: The question as to whether after 
having been summoned by a trial court under section 204, Cr.P.C. to 
face a trial in connection with a private complaint the person so 
summoned is required only to furnish a bond, with or without 
sureties, under section 91, Cr.P.C. for his future appearance before 
the trial court or he is to apply for pre-arrest bail under section 498, 
Cr.P.C. is a question which has remained a subject of some 
controversy in the past and, therefore, on 20.01.2012 this Court had 
granted leave to appeal in some of the present matters so that the 
issue may be conclusively resolved through an authoritative 
pronouncement. The leave granting order (reported as 2012 SCMR 
1912) passed by a 5-member Bench of this Court reads as follows: 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
3
 
 
“The question involved in these petitions is as to whether 
upon his summoning by a trial Court in a case arising out of a 
private complaint an accused person needs to apply for bail in terms 
of sections 496, 497 and 498, Cr.P.C. or in such a situation he is 
only to submit a bond for his appearance before the trial Court under 
section 91, Cr.P.C. It appears that in different judgments different 
notes have been struck by this Court on the subject and a reference 
in this respect may be made to the cases of Syed Muhammad Firdaus 
and others v. The State (2005 SCMR 784), Luqman Ali v. Hazaro and 
another (2010 SCMR 611) and Criminal Appeal No. 56 of 1986 
(Raham Dad v. Syed Mazhar Hussain Shah) decided by this Court on 
14-1-1987). At different times different High Courts had also 
rendered conflicting judgments on the issue. It is, therefore, 
imperative that such conflicts should be removed or resolved at the 
earliest so as to restore certainty in the matter for the guidance of all 
the courts in the country. In this view of the matter leave to appeal is 
granted in both these petitions and the Office is directed to fix the 
appeals for regular hearing at the earliest possible, preferably within 
a period of one month. The petitioners in Criminal Petition No. 549-L 
of 2011 have already been admitted to ad-interim pre-arrest bail by 
this Court vide order dated 11-8-2011. Their ad-interim pre-arrest 
bail shall continue till the next date of hearing.” 
 
2. 
In view of the legal controversy at hand we have deemed it 
appropriate to resolve the legal issue first and then to leave the 
present appeals and petitions to be decided by appropriate Benches of 
this Court on the basis of their respective merits in the light of the law 
declared through the present judgment. 
 
3. 
We have heard the learned counsel for the parties, some of the 
parties appearing in person and the learned Additional Prosecutors-
General, Punjab appearing for the State at some length and have also 
attended to and perused the statutory provisions and the precedent 
cases referred to and relied upon by them in support of their 
respective submissions.   
 
4. 
For a proper resolution of the legal question involved it may be 
advantageous to reproduce the following legal provisions of the Code 
of Criminal Procedure, 1898 relevant to the issue: 
 
91. 
Power to take bond for appearance.  When any person for 
whose appearance or arrest the officer presiding in any Court is 
empowered to issue a summons or warrant, is present in such Court, 
such officer may require such person to execute a bond, with or 
without sureties, for his appearance in such Court. 
 
204. 
Issue of process. (1) If in the opinion of a Court taking 
cognizance of an offence there is sufficient ground for proceeding, 
and the case appears to be one in which, according to the fourth 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
4
column of the Second Schedule, a summons should issue in the first 
instance, it shall issue its summons for the attendance of the 
accused. If the case appears to be one in which, according to that 
column, a warrant should issue in the first instance, it may issue a 
warrant, or, if it thinks fit, a summons for causing the accused to be 
brought or to appear at a certain time before such Court or if it has 
no jurisdiction itself some other Court having jurisdiction. -------------
-------- 
  
496. 
In what cases bail to be taken.  When any person other than 
a person accused of a non-bailable offence is arrested or detained 
without warrant by an officer in charge of a police station or appears 
or is brought before a Court, and is prepared at any time while in the 
custody of such officer or at any stage of the proceedings before such 
Court to give bail, such person shall be released on bail:  
 
Provided that such officer or Court, if he or it thinks fit, may, 
instead of taking bail from such person, discharge him on his 
executing a bond without sureties for his appearance as hereinafter 
provided: 
 
Provided further that nothing in this section shall be deemed 
to affect the provisions of section 107, sub-section (4), or section 117, 
sub-section (3). 
 
497.  When bail may be taken in case of non-bailable offence. (1) 
When any person accused of any non-bailable offence is arrested or 
detained without warrant by an officer in charge of a police station, 
or appears or is brought before a Court, he may be released on bail, 
but he shall not be so released if there appear reasonable grounds for 
believing that he has been guilty of an offence punishable with death 
or imprisonment for life or imprisonment for ten years: -----------------
---- 
 
(2)  
If it appears to such officer or Court at any stage of the 
investigation, inquiry or trial, as the case may be, that there are no 
reasonable grounds for believing that the accused has committed a 
non-bailable offence, but that there are sufficient grounds for further 
inquiry into his guilt, the accused shall, pending such inquiry, be 
released on bail, or, at the discretion of such officer or Court, on the 
execution by him of a bond without sureties for his appearance as 
hereinafter provided. --------------------- 
 
498.  Power to direct admission to bail or reduction of bail.  The 
amount of every bond executed under this Chapter shall be fixed with 
due regard to the circumstances of the case, and shall not be 
excessive; and the High Court or Court of Session may, in any case, 
whether there be an appeal on conviction or not, direct that any 
person be admitted to bail, or that the bail required by a police officer 
or Magistrate be reduced. 
 
498-A. No bail to be granted to a person not in custody, in Court 
or against whom no case is registered, etc.  Nothing in section 497 
or section 498 shall be deemed to require or authorize a Court to 
release on bail, or to direct to be admitted to bail, any person who is 
not in custody or is not present in Court or against whom no case 
stands registered for the time being and an order for the release of a 
person on bail, or a direction that a person be admitted to bail, shall 
be effective only in respect of the case that so stands registered 
against him and is specified in the order or direction. 
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
5
5. 
Before embarking upon any discussion on the legal issue 
involved in these matters it may also be useful to refer to all the 
reported cases on both sides of the legal divide. The reported cases on 
the subject can be divided into two categories, the first category of 
cases is that wherein it was held that after having been summoned by 
a trial court to face a trial in connection with a private complaint the 
person so summoned is required only to furnish a bond, with or 
without sureties, under section 91, Cr.P.C. for his future appearance 
before the trial court and in the second category of cases it was held 
that such person is to apply for pre-arrest bail under section 498, 
Cr.P.C. failing which he is to be taken into custody and lodged in jail.  
 
6.  
In the first category of cases, i.e., the category of cases wherein 
it was held that after having been summoned by a trial court to face a 
trial in connection with a private complaint the person so summoned 
is required only to furnish a bond, with or without sureties, under 
section 91, Cr.P.C. for his future appearance before the trial court the 
pioneering and groundbreaking case was the case of Mazhar Hussain 
Shah v. The State (1986 P.Cr.L.J. 2359). In that case while seized of a 
private complaint a Sessions Judge recorded the statement of the 
complainant and the evidence produced at the preliminary stage and 
then issued process against the accused persons under section 204, 
Cr.P.C. In response to the summonses issued by the Sessions Judge 
the accused persons appeared before the Sessions Judge and filed 
applications for pre-arrest bail but the same were dismissed by the 
Sessions Judge with the observation that it was not a fit case for pre-
arrest bail. The accused persons then approached the Lahore High 
Court, Lahore for the desired relief and Muhammad Rafiq Tarar, J. 
admitted the said accused persons to pre-arrest bail and observed as 
follows:  
 
“3.  
Section 204, Cr.P.C. provides that if the Court taking 
cognizance of an offence is of the opinion that there is sufficient 
ground for proceeding, it shall issue a summons if the case appears 
to be one in which, according to the fourth column of the Second 
Schedule, summons should issue in the first instance but if the case 
appears to be one in which according to that column, a warrant 
should issue in the first instance, it may issue a warrant, or, if it 
thinks fit, a summons, for causing the accused to be brought or to 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
6
appear before it. According to fourth column a warrant should 
ordinarily issue in the first instance in a case under section 302, 
P.P.C. but in this case the Court chose to issue a summons. Section 
91, Cr.P.C. lays down that when any person for whose appearance or 
arrest the officer presiding in any Court is empowered to issue a 
summons or warrant, is present in such Court, such officer may 
require such person to execute a bond, with or without sureties, for 
his appearance in such Court. Under this section a bond with or 
without sureties may be taken from an accused person or from a 
witness for his appearance. The learned Sessions Judge was 
empowered to issue warrant or summons for causing the accused to 
be brought to or appear before him and exercising that power he 
issued summons to the petitioners in response to which they 
appeared before him. He was, therefore, required to proceed under 
section 91, Cr.P.C., and to direct them to execute bonds with or 
without sureties for their appearance in Court. This section by 
necessary implication also empowers the Court to commit the person 
present in Court to custody if he fails to give security for his 
attendance. It is nobody's case that the petitioners were asked to 
execute bond and they had failed to do so. 
  
Process is issued to the accused when the Court taking 
cognizance of the offence is of the opinion that there is sufficient 
ground for proceeding. Such opinion is not to be equated with the 
existence of reasonable ground for believing that the accused was 
guilty of an offence punishable with death or imprisonment for life or 
imprisonment for ten years. In the circumstances, I feel inclined to 
the view that the petitioners are entitled to bail. The interim bail is, 
therefore, confirmed.” 
 
Admission of Syed Mazhar Hussain Shah accused to pre-arrest bail 
by the Lahore High Court, Lahore in that case was challenged by 
Reham Dad complainant before this Court through Criminal Appeal 
No. 56 of 1986 but that appeal was dismissed by a 3-member Bench 
of this Court through its judgment dated 14.01.1987. The said 
judgment had not been published in any law report or journal and, 
therefore, the same is being reproduced here in full: 
 
“IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESEMT 
Mr. Justice Dr. Nasim Hasan Shah 
Mr. Justice Ali Hussain Qazilbash 
Mr. Justice Saad Saood Jan 
 
Cr. A. No. 56/86. 
(On appeal from the order dated 7.12.1985 of the Lahore High Court, 
Lahore in Cr. Misc. No. 2807/B of 1985) 
 
Reham Dad s/o Muhammad Bakhsh. 
                    ….Appellant 
 
Vs. 
 
Syed Mazhar Hussain Shah & others. 
                …Respondents
 
 
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
7
For the appellant: 
 
Ch. Muhammad Abdul Wahid, Sr. ASC 
 
 
 
 
Mr. Mahmood A. Qureshi, AOR (absent) 
 
For respondents 1-17: 
Mr. Nemat Khan, ASC 
 
 
 
 
Ch. Mehdi Khan Mehtab, AOR {absent) 
 
For the State:  
 
Mr. M. Nawaz Abbasi, Asstt. A.G. Pb. 
 
 
 
 
Rao Muhammad Yousuf Khan, AOR 
 
Date of hearing: 
 
14.1.1987 
 
 
JUDGMENT 
 
 
 
Ali Hussain Qazilbash J.- 
This appeal arises out of the 
order of a learned Single Judge of the Lahore  High Court dated 
7.12.1985 whereby the respondents were allowed bail before their 
arrest. 
 
2. 
The facts are that Syed Mazhar Hussain Shah, Head 
Constable (Incharge) Proclaimed Offenders Staff, Gujrat and 8 other 
constables as well as 8 private persons are accused in a complaint 
case by the appellant Rahim Dad for the murder of his two sons 
namely Muhammad Azam, Muhammad Azhar and one Noor Hussain 
under sections 120-B, 148, 302 and 109/149 PPC. It was complained 
by the appellant that in pursuance of a conspiracy the respondents 
committed the crime under the sections given above on 23.12.1983. 
As police officials were involved in the case, it was given a colour of 
police encounter and lot of public attention was attracted to the case. 
No case, however, could be registered with the police, therefore, the 
appellant filed a complaint on 18.7.1984. A judicial inquiry was made 
in the matter by Mr. Muhammad Musa Khan, Magistrate 1st Class, 
Gujrat in which the respondents were found guilty but in another 
inquiry conducted by the Assistant Commissioner, Mandi Bahau Din, 
the police officials, accused in the complaint were exonerated and 
therefore the complaint was lodged. The complaint came up before a 
learned Sessions Judge, Gujrat who proceeded under section 204 of 
the Cr.P.C., recorded preliminary evidence and issued process 
against the respondents on 17.7.1985. In response to the summons 
issued by the learned Sessions Judge, the respondents appeared in 
Court moved application for bail before arrest. Relying on the 
provisions of sections 90 and 91 Cr.P.C., the learned Sessions Judge 
rejected the bail application on 29.10.1985 holding that there were 
grounds for proceeding further in the matter. The respondents then 
moved in the High Court their bail before arrest through Cr. Misc. No. 
2807-B of 1985 on 12.11.1985 which came up for hearing before Mr. 
Justice Muhammad Rafiq the same day, who admitted the 
respondents to interim bail and then on 7.12.1985 confirmed the bail 
through the impugned order, hence the present appeal. 
 
3. 
We have heard the learned counsel for the parties and have 
gone through the orders of the Courts below. The learned Single 
Judge while allowing bail to the respondents has observed, “The 
learned Sessions Judge was empowered to issue warrants or 
summons for causing the accused to be brought or to appear before 
him and exercising that power he issued summons to the petitioners 
in response to which they appeared before him. He was, therefore, 
required to proceed under section 91 Cr.P.C. and to direct them to 
execute bonds with or without sureties for their appearance in the 
Court. The section, by necessary implication also empowers the 
Court to commit the person present in the Court to custody if he fails 
to give security for his attendance. 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
8
Process is issued to the accused when the Court taking 
cognizance of the offence is of the opinion that there is sufficient 
ground for proceeding. Such opinion is not to be equated with the 
existence of reasonable ground for believing that the accused was 
guilty of an offence punishable with death or imprisonment for life or 
imprisonment for 10 years.” 
 
4. 
We have considered the arguments of the learned counsel for 
the parties in the light of the above observation and we are of the 
view that the learned Single Judge was justified in admitting the 
respondents to bail. His findings are unexceptionable and need no 
interference. This appeal fails and is hereby dismissed.” 
 
7. 
The ratio of the case of Mazhar Hussain Shah (supra) was 
subsequently referred to and followed by Khalid Paul Khawaja, J. of 
the Lahore High Court, Lahore in the case of Maqbool Ahmad and 
another v. The State and another (1997 P.Cr.L.J. 1074) wherein it was 
observed as follows: 
 
“13. 
Admittedly the petitioners are accused persons in a private 
complaint. After the issuance of a process against them under section 
204, Cr.P.C. when they had put in appearance before the trial Court 
the learned Sessions Judge should have acted in accordance with the 
provisions of section 91, Cr.P.C. which reads as follows:-- 
  
"When any person for whose appearance or arrest the 
officer presiding in any Court is empowered to issue a 
summons or warrant, is present in such Court, such 
officer may require such person to execute a bond, 
with or without sureties, for his appearance in such 
Court.” 
  
It has been held in Mazhar Hussain Shah v. The State 1986 PCr.LJ 
2359 (Lahore) that after appearance of the accused in Court in 
pursuance of a process issued under section 204, Cr.P.C. the trial 
Court was required to proceed under section 91, Cr.P.C. and to direct 
the accused to execute bonds with or without sureties for appearance 
in Court. Admittedly in the present case the accused petitioners were 
not asked to execute bonds. This was a lapse on the part of the 
learned trial Court which militates against the law laid down by 
Superior Courts. In my opinion the learned Sessions Judge should 
have asked the petitioners to execute bonds for their appearance even 
if they had been summoned through non-bailable warrants of arrest. 
  
14.  
From the dictum laid down in the aforecited Mazhar Hussain 
Shah's case it emanates that the learned Sessions Judge had wrongly 
proceeded to consider that the petitioners had applied for their pre-
arrest bail. In the aforecited case the facts are identical to the present 
case. A few Police Officers were summoned in a private complaint 
under sections 120-B, 148, 302, 109 and 149, P.P.C. They appeared 
before the trial Court and moved applications for bail. The Court 
treated the said applications as applications for pre-arrest bail and 
dismissed them. It was held that the observation of the learned trial 
Court that it was case of pre-arrest bail was misconceived and the 
accused were found to be entitled to bail. It was further held that 
existence of sufficient grounds for proceedings in a complaint case 
could not be equated with the existence of reasonable grounds that 
the accused was guilty of an offence punishable with death or 
imprisonment for ten years. In this view of the matter the present 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
9
applications, in stricto senso, could not be considered to be 
applications for pre-arrest bail and, therefore, the contention that the 
petitioners had not alleged mala fides was irrelevant. 
  
15.  
In view of what has been stated above the interim bail granted 
to Maqbool Ahmad, Babu Muhammad Ishaque, Master Asif, Akhtar 
and Muhammad Nawaz petitioners is confirmed while Muhammad 
Aslam petitioner in Criminal Miscellaneous No. 5357/B of 1997 is 
required to execute a bail bond in the sum of Rs. 20,000 with one 
surety in the like amount to the satisfaction of the learned trial 
Court.” 
 
8. 
The legal position declared in the case of Mazhar Hussain Shah 
(supra) was also expressly referred to and relied upon by Kh. 
Muhammad Sharif, J. of the Lahore High Court, Lahore in the later 
case of M. Siddique v. Rehmat and others (PLJ 2001 Cr.C. (Lahore) 
251) and it was held in that case as under: 
 
 
 
“Through this Criminal Revision learned counsel for the 
petitioner has challenged the order of learned Addl. Sessions Judge, 
Sheikhupura dated 2.10.2000, whereby, the said learned Addl. 
Sessions Judge in a complaint case after summoning the respondent, 
through summons directed them to file bail bonds in the sum of  Rs. 
50,000/-. He submits that in the peculiar circumstances of the case 
when younger son of the complainant has been murdered by the 
respondents and police with mala fide intention had cancelled the 
case, the Court in the first instance should have issued non-bailable 
warrants, that Section 204, Cr.P.C. should be read with Section 497 
Cr.P.C. alongwith Section 91, Cr.P.C. He has also relied upon PLD 
1992 Lahore 444, and 1987 P.Cr.L.J. 532 & 1897. 
 
2. 
I have heard learned counsel for the petitioner at a great 
length and have also gone through Sections 204, 497 and 91 Cr.P.C. 
As far as, Section 497 Cr.P.C. is concerned, the same is reproduced 
below: 
 
497. 
When bail may be taken in cases of non-
bailable offence--(1) When any person accused of non-
bailable offence is arrested or detained without 
warrant by an officer-in-charge of a police station, or 
appears or is brought before a Court, he may be 
released on bail, but he shall not be so released if 
there appear reasonable grounds for believing that he 
has been guilty of an offence punishable with death or 
(imprisonment) for life or imprisonment for 10 years.” 
 
2. 
In Section 497, Cr.P.C. The word used by the statute is that 
when any accused person of non-bailable offence is arrested or 
detained without warrant by any officer-in-charge of Police Station, or 
appears or is brought before a Court. In my humble opinion, the 
words give the meaning that the persons who has been summoned or 
himself surrenders before the Court, he may be released on bail but 
he shall not be so released if there appear reasonable grounds for 
believing that he is guilty of an offence punishable with death or 
(imprisonment) for life or imprisonment for 10 years. Moreover, the 
same matter was also examined by this Court while deciding the case 
of Mazhar Hussain Shah vs. The State, reported in 1986 P.Cr.L.J. 
2359, wherein it was held that: 
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
10
“Process is issued to the accused when the Court 
taking cognizable of the offence is of the opinion that 
there is sufficient ground for proceeding. Such opinion 
is not to be equated with the existence of reasonable 
ground for believing that the accused was guilty of an 
offence punishable with death or imprisonment for life 
or imprisonment for ten years.” 
 
3. 
In the instant case, FIR was registered against the 
respondents but no challan was submitted in the Court, thereafter, 
complaint was filed. After recording preliminary evidence, Court came 
to the conclusion that prima facie case was made out, summons were 
issued against the respondents and in response to the summons they 
appeared before the Court and they were directed by Court to file bail 
bonds in the sum of Rs. 50,000/-. No illegality has been committed 
by learned Addl. Sessions Judge, Sheikhupura. The judgments cited 
by learned counsel for the petitioner are not applicable in the instant 
case and particularly, in a judgment that is, 1987 P.Cr.L.J. 532, it 
was held by his Lordship that investigation in that case was biased 
one which is not here in this case. This practice of summoning the 
accused through bailable warrants is going on for the last so many 
years. It is based on good reasoning and interpretation of the statute. 
No case for interference is made out, therefore, this petition is 
dismissed in limine.”  
 
9. 
Subsequently in the case of Ghulam Abbas v. State (PLJ 2005 
Cr.C. (Lahore) 72) while dealing with an application for suspension of 
sentence and bail after conviction in a case arising out of a private 
complaint Ch. Iftikhar Hussain, J. of the Lahore High Court, Lahore 
had observed as follows: 
“7. 
The contention that he may be released on bail by suspending 
his sentence by taking bond from him for appearance according to 
the spirit of Section 91, Cr.P.C. is absolutely misconceived. It is 
because of the fact that the object of that provision of law is only to 
secure the attendance/appearance of a person, whose presence may 
be required by Court in relation to some matter before it. The position 
in the case of the applicant is altogether different inasmuch as that 
he after due appreciation of the evidence available on the record was 
found guilty of the charge of Qatal-e-Amd of the deceased and was 
convicted and sentenced as mentioned above. So, the provision of 
Section 91, Cr.P.C. cannot be attracted in his case for suspending his 
sentence and release on bail.”  
 
10. 
Later on in the case of Syed Muhammad Firdaus and others v. 
The State (2005 SCMR 784) a 3-member Bench of this Court 
approvingly referred to the case of Mazhar Hussain Shah (supra) and 
held as already held by this Court in the above mentioned 
unreported case of Reham Dad (supra). The relevant observations 
made by this Court are reproduced below: 
“A  perusal  of  above  order  indicates  that  prima  facie,  learned  
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
11
trial Court  failed  to  take  into  consideration  that  the  case  of  
petitioners Raja  Munawar  Hussain,  Amjad  Javed  Saleemi  is  
also  at  par  with the  case  of  Dr.  Muhammad  Azam,  therefore,  
they  have  also  not been  summoned  and  once  the  Court  
decided  to  proceed  against  them,  then  their  bail  should  have  
not  been  cancelled,  as  they  were  liable  to  be  dealt  with  
under  section  91,  Cr.P.C.  in   view of the judgment in the case 
of Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359.” 
 
11. 
The next was the case of Muhammad Ijaz v. Nadeem and 3 
others (PLD 2006 Lahore 227) wherein Syed Shabbar Raza Rizvi, J. 
of the Lahore High Court, Lahore noticed the judgment passed by 
this Court in the case of Syed Muhammad Firdaus (supra) and went 
on to add as follows: 
 
“Section 88 of the Code of Criminal Procedure, 1973 (India) is 
verbatim in language to section 91, Cr.P.C. For convenience, it is 
reproduced hereunder:-- 
 
"When any person of whose appearance or arrest the 
officer presiding in any Court is empowered to issue 
summons or warrant, is present in such Court, such 
officer may require such person to execute a bond, 
with or without sureties, for his appearance in such 
Court or any other Court to which the case may be 
transferred for trial." 
 
The purpose of this section is to ensure or demand presence of such 
person who is directed by the Court to execute the bonds. For the 
same reasons, these provisions are applicable to a person who is 
present in Court and is free. If a person is already under arrest and 
in custody, provisions of section 91, Cr.P.C. are not applicable. In 
this regard, two judgments from Indian jurisdiction are referred; Ajit 
Singh v. State AIR 1970 Dehli 155 and Madhu Umaye v. S.D.M. 1971 
1.Cr.L.J. 1720 and AIR 1971 SC 2486.” 
 
12. 
The last case of this category of cases was the case of 
Muhammad Yasin v. The State and another (2008 YLR 2197) decided 
by Malik Saeed Ejaz, J. of the Lahore High Court, Lahore and it was 
held in that case as under: 
 
 
“12. 
In the instant case, the petitioner was declared innocent in 
the investigation and police case against him has been filed as 
"Untraced". Resultantly, in private complaint regarding the same 
occurrence, process under section 204, Cr.P.C. was issued by the 
learned trial Court and the petitioner was directed to appear to face 
trial in the instant complaint. When the accused appeared in 
response to issuance of such process, the learned trial Court instead 
of directing him to execute bonds with or without surety by following 
the provisions of section 91, Cr.P.C., rejected the request of bail of 
the petitioner and sent him behind the bars. 
  
13. 
The case-law cited by the learned counsel for the petitioner is 
very much applicable in the instant case. I would like to reproduce 
the relevant extracts of the same. In the case reported as 2005 SCMR 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
12
784 it is held that "Once the Court decided to proceed against them 
(accused), then their bail should have not been cancelled as they 
were liable to be dealt with under section 91, Cr.P.C." In the case 
cited as 1997 P.Cr.L.J. 1074 it is observed that "Admittedly the 
petitioners are accused persons in a private complaint. After the 
issuance of a process against them under section 204, Cr.P.C. when 
they had put in appearance before the trial Court the learned 
Sessions Judge should have acted in accordance with the provisions 
of section 91, Cr.P.C." Similarly in case published as 1986 P.Cr.L.J. 
2359 in its head-note it is held that "In response to summons issued 
by trial Court in a private complaint accused persons appearing 
before trial Court and moving for bail which was refused --- After 
appearance of accused in Court, trial Court, held, was required to 
proceed under S. 91, Cr.P.C. and to direct accused to execute bonds 
with or without sureties for appearance in Court --- As accused were 
not asked to execute bond they could not be said to have failed to do 
so --- Observations of trial Court that case was of pre-arrest bail was 
found to be misconceived and accused were found to be entitled to 
bail in circumstances." 
 
14. 
In these circumstances, I am of the considered view that the 
learned trial Court has not followed the prescribed procedure of law 
as laid down under section 204, Cr.P.C. read with section 91, Cr.P.C. 
but on the other hand the learned trial Court had decided the bail 
petition of the petitioner by touching the merits of the case, while 
interpreting the provisions of section 204, Cr.P.C. read with section 
91, Cr.P.C. in the light of above cited judgments, I am of the 
considered view that the merits of the case are not required to be 
touched at the time of deciding bail petition in a private complaint, 
therefore, the impugned order dated 16-4-2007 passed by the learned 
Additional Sessions Judge, Khanewal, is not sustainable, hence, the 
same is set aside. 
 
15. 
Keeping in view the facts and circumstances of the case and 
relying upon the above referred judgments, I have no option but to 
admit the petitioner to bail merely on technical grounds by following 
the provisions of section 204, Cr.P.C. read with section 91, Cr.P.C. to 
release him on bail by directing to submit bail bonds in the sum of 
Rupees Five Lac (Rs. 5,00,000), with two sureties, each in the like 
amount, to the satisfaction of the trial Court.” 
 
13. 
The first reported case falling in the second category of cases 
wherein it was held that a person summoned to face a trial in 
connection with a private complaint is to apply for pre-arrest bail 
under section 498, Cr.P.C. was the case of Wazir Khan and another v. 
The State (1987 P.Cr.L.J. 532). In that case Rustam S. Sidhwa, J. of 
the Lahore High Court, Lahore did not discuss the legal position in 
respect of the issue at hand at all and proceeded upon an assumption 
that in such a case the person concerned is to apply for pre-arrest 
bail. In the later case of Sajjad Hussain alias Basara v. Faqir 
Muhammad and another (1987 P.Cr.L.J. 1898) decided by Qurban 
Sadiq Ikram, J. of the Lahore High Court, Lahore the position was 
again the same. 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
13
 
14. 
In the subsequent case of Malik Anjum Farooq Paracha v. 
Manzur-ul-Haq and 5 others (PLD 1992 Lahore 444) Tanvir Ahmad 
Khan, J. of the Lahore High Court, Lahore also proceeded under the 
same assumption and without any discussion regarding the legal 
issue at hand held as under:  
 
“I have considered the contentions. I must observe at the very 
outset that the role of the Investigating Agency is highly questionable 
in this case. The stance taken by the S.P. Crime Branch who is 
present in Court is that once the investigation of a case is entrusted 
to the Crime Branch, the accused named therein would not be 
arrested unless and until the investigation is finalized and its 
approval is accorded by the Inspector-General of Police. He has 
stated that though there are no such written instructions or rules but 
this procedure is based upon prevailing practice. It is strange enough 
that in this broad daylight occurrence in the premises of the Court in 
which one person lost his life and two persons were brutally injured; 
the F.I.R. was promptly recorded; the prearrest bail of respondents 
Nos. 1 to 5 was not confirmed by the learned Additional Sessions 
Judge Mr. Mazhar Hussain Minhas on the 22nd of December, 1991 
the police functionaries did not apprehend the accused/respondents. 
If this practice is not arrested and is allowed to continue, then an 
accused of' any serious crime, can successfully avoid arrest by 
arranging the investigation through Crime Branch and frustrate a 
judicial order. Inspector-General of Police, Punjab is to take serious 
note of this practice.   
  
Subsequent to this attitude of the Crime Branch, on a 
complaint filed by the petitioner on the similar facts, Mr. Ata Rasool 
Joya, Additional Sessions Judge issued process after being fully 
satisfied from the preliminary evidence recorded by him that a case of 
section 302, P.P.C. is made out. He issued non-bailable warrants of 
the respondents and instead of keeping his hand away as it was 
brought to his notice that the earlier pre-arrest bail application on 
similar facts was disallowed by Mr. Mazhar Hussain Minhas, 
Additional Sessions Judge, he allowed the execution of bail bonds 
through his order dated 7-5-1992. The proper procedure for him was 
to refer the matter to the learned Sessions Judge, Rawalpindi for an 
appropriate order. Instead of doing the same he in a mechanical 
manner directed the respondents to execute the bail bonds without 
noticing and considering the conditions for grant of bail under 
section 497, Cr.P.C. This exercise of power on his part is clearly in 
violation of the rule laid down in Zubair's case PLD 1986 SC 173 
wherein it has been specifically held that in the same case (or in the 
cross-case) successive bail application has to be heard by the same 
Court. In the case in hand the facts of F.I.R. No. 488 and that of a 
complaint are completely similar. Respondents were earlier held by 
Mr. Mazhar Hussain Minhas, Addl. Sessions Judge not entitled to the 
concession of bail as according to him there appears reasonable 
ground for believing that they have been guilty of an offence 
punishable with death or imprisonment for life or for 10 years. 
Keeping all the facts and circumstances of the case into 
consideration, the concession granted to the respondents Nos. 1 to 5 
by allowing them to submit their bail bonds is hereby recalled and it 
is directed that they shall be arrested forthwith. Office is directed to 
transmit this order to the S.S.P., Rawalpindi for compliance. A copy 
of this order shall also be sent to the Inspector-General of Police, 
Punjab.” 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
14
15. 
The later case of Noor Nabi and 3 others v. The State (2005 
P.Cr.L.J. 505) holds the same foundational distinction in the second 
category of cases on the subject under discussion as is held by the 
case of Mazhar Hussain Shah (supra) in the first category of cases. In 
the case of Noor Nabi Rahmat Hussain Jafferi, J. of the High Court of 
Sindh, Karachi had undertaken a detailed analysis of the scheme of 
things in the Code of Criminal Procedure and had held as follows:  
“I have given due consideration to the arguments and have 
gone through the material available on the record very carefully. On 
the earlier dates, the counsel for the applicants got the matter 
adjourned to produce the order by which the applicants were granted 
bail in direct complaint case. The counsel for the applicants did not 
produce the bail order on the ground that no such order was passed 
but produced the affidavit of surety which was accepted by the trial 
Court on 12-8-2002 and released the accused. 
  
I have gone through the contents of direct complaint and the 
F.I.R. I find that the facts are same, the accused are also same. It 
appears that the direct complaint was filed because the police did not 
arrest the applicants even after lodging the F.I.R. In the direct 
complaint, the process was issued against the applicants and other 
co-accused persons in the shape of bailable warrants as required 
under fourth column of Schedule-II attached to the Cr.P.C. 
  
In pursuance of the B.Ws. the accused appeared before the 
Court but the Court released them on executing bond with surety 
without passing any order granting bail to them as required under 
section 497, Cr.P.C. 
  
Important question has been raised in this application as to 
whether the Court issuing process under section 204, Cr.P.C. in a 
direct complaint, is required to release the accused merely on bond 
as required under section 91 of Cr.P.C. or a bail is to be granted 
within the meaning of section 497, Cr.P.C., when the accused 
involved in non-bailable case appeared before the Court issuing the 
process against them. 
  
In the case of Mazahar Hussain Shah v. State reported in 
1986 PCr.LJ 2359, it has been observed that in a case of private 
complaint when the accused appear before the Court in pursuance of 
process issued against him under section 204, Cr.P.C. then the 
accused is simply required to execute a bond with or without surety 
for their appearance as provided under section 91, Cr.P.C. With 
utmost respect to the Honourable Judge, I am unable to agree with 
the said proposition because of following reasons:-- 
  
This point can be properly appreciated if the scheme of 
Criminal Procedure Code is examined relating to the institution of 
case, issuing of process and ultimately trial. 
  
A perusal of Criminal Procedure Code reveals that it is divided 
into parts, which are divided in Chapters and that are again 
sub-divided in sub-chapters. The parts, chapters and sub-chapters 
have been given headings to emphasis subject on which they deal. 
Some of the subjects are general in nature. Some of the subjects are 
special, contain special provisions to deal with special situation and 
some of the subjects are supplementary, contain supplementary 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
15
provisions to add, supplies deficiency, fill need, give further 
information to other provisions. This scheme of the Code may be kept 
in view, to understand the further discussions. 
  
If an offence is committed then the aggrieved party may file 
report before an officer of police station within the meaning of section 
154, Cr.P.C. or file a direct complaint before the competent Court 
under section 200, Cr.P.C. or the Magistrate on his own information 
comes to know about the commission of offence. Basically there are 
three stages in a case:-- 
  
(1) Institution of proceedings, 
  
(2) Commencement of the proceedings before the Court and 
(3) Trial. 
  
Conditions requisite for initiating proceedings are dealt with 
in sub-chapter "B" of Chapter XV of Part VI of Cr.P.C. Part-VI of the 
Code deals with "proceedings in prosecutions". It has 17 Chapters; 
starting from Chapters XV to XXXIII. For the purpose of present 
proceedings, Chapters XV, XVI, XVII and XX are material. Chapter 
XV is divided into two sub-chapters "A" and "B". Sub-chapter "A" 
deals with "place of enquiry or trial". Sub-chapter "B" deals with 
"conditions requisite for initiation of proceedings". Chapter XVI deals 
with "of complaints to Magistrates", Chapter XVII deals with "of the 
commencement of proceedings before Court", Chapters XX, XXII and 
XXII-A deal with "trial before Magistrates, summary trials and trials 
before High Court and Court of Session" respectively.  
  
Sub-chapter "B" of Chapter XV "conditions requisite for 
initiation of proceedings" of Part VI of the Code is spread into 15 
sections starting from sections 190 to 199-B. One of the conditions 
requisite for initiation of proceedings is of taking cognizance by the 
Magistrate on a police report (section 173, Cr.P.C.), 2. on a direct 
complaint constituting the facts of offence when the complaint is filed 
under section 200, Cr.P.C. and 3. on information received from any 
person other than Police Officer or upon Magistrate's own knowledge 
or suspicion. Under section 190, Cr.P.C. the proceedings of a case 
start by taking cognizance, on the above three sources of information 
received by a Magistrate. If the direct complaint is lodged and after 
taking cognizance under section 190, Cr.P.C. then Chapter XVI of 
Part VI would come into operation which has only four sections 
starting from sections 200 to 203, under which the Court is 
authorized to hold preliminary enquiry and if it comes to the 
conclusion that no case has been made out then the complaint is 
required to be dismissed under section 203, Cr.P.C. But if from the 
enquiry it is found that the offence has been committed then the 
Chapter XVII "of the commencement of proceedings before Court" 
would come into operation. If the proceedings are initiated on any of 
the abovementioned three sources viz. police report, direct complaint 
or personal knowledge of the Magistrate, then the proceedings of a 
case commences by issuing the process as required under section 
204, Cr.P.C. Section 204, Cr.P.C. reads as under:-- 
  
"section 204. Issue of process.--- (1) If in the opinion of 
a Court taking cognizance of an offence there is 
sufficient ground for proceedings, and the case 
appears to be one in which, according to the fourth 
column of the Second Schedule, a summons should 
issue in the first instance, it shall issue his summons 
for the attendance of the accused. If the case appears 
to be one in which according to that column, a warrant 
should issue in the first instance, it may issue a 
warrant, or if it thinks fit, a summons, for causing the 
accused to be brought or to appear at a certain time 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
16
before such Court or if it has no jurisdiction itself 
some other Court having jurisdiction. 
  
(2)  
Nothing in this section shall be deemed to 
affect the provisions of section 90. 
  
(3)  
When by any law for the time being in force any 
process fee or other fees are payable, no process shall 
be issued until the fees are paid and if such fees are 
not paid within a reasonable time, the Court may 
dismiss the complaint." 
  
A perusal of this section reveals that after taking cognizance 
of an offence (on any of the source of information mentioned in 
section 190, Cr.P.C.), if the Court is of opinion that there are 
sufficient grounds for proceeding and the case appears to be one in 
which according to the fourth column of the Second Schedule, a 
summons should be issued in the first instance then the Court shall 
issue summons for the attendance of the accused but if the Court 
forms an opinion that the case appears to be one in which according 
to the abovementioned column, a warrant should be issued in the 
first instance then it may issue a warrant or if the Court thinks fit a 
summons may be issued for causing the accused to be brought or to 
appear at a certain time before such Court or if the Court has no 
jurisdiction then to some other Court having jurisdiction in the 
matter. Under subsection (2), it is provided that provision of section 
90, Cr.P.C. shall not be deemed to be affected because of the above 
provision. 
  
A general perception is that section 204, Cr.P.C. is applicable 
to a case filed on a direct complaint only but the wording of the 
sections "if in opinion of a Court taking cognizance of an offence" are 
very significant and clear. Under which if the Court takes cognizance 
of an offence on any of the sources of information mentioned in 
section 190, Cr.P.C. viz. on police report, on direct complaint or on a 
Magistrate's personal information, the process can be issued under 
section 204, Cr.P.C. This is the only provision through which the 
proceedings are commenced in the Court of law. In my humble view, 
under the Chapter XVII "of the commencement of proceedings before 
the Court" the proceedings will commence before any Court if after 
taking cognizance as required under section 190, Cr.P.C. on any 
sources mentioned in it, process is issued to the accused persons. 
Reference is invited to a case of Raghunath Puri v. Emperor reported 
in AIR 1932 Pat. 72 and Muhammad Aslam v. Additional Secretary, 
Government of N.-W.F.P. reported in PLD 1987 SC 103. This Chapter 
which is independent by itself has two sections viz. 204 and 205. 
Section 205, Cr.P.C. deals with the power of Magistrate to dispense 
with the personal attendance of the accused. Once the proceedings 
are commenced under section 204, Cr.P.C. then process of trial 
begins by framing of the charge as required by various sections of 
Chapter XIX and then starts the trial before Magistrate, summary 
trial and trials before High Court and Court of Session as provided 
under Chapters XX, XXII and XXII-A. 
  
From the perusal of section 204, Cr.P.C. it reveals that the 
process is issued to procure the attendance of accused persons 
through summons or warrants so as to bring them or to appear 
before the Court for the commencement of proceedings before the 
Court. If the summons are issued then they are required to attend 
the Court on the date mentioned in it or if the warrants are issued 
then the accused are brought before the Court and if the accused 
come to know that process has been issued against them but the 
summons or warrants have not been served or bailable warrants are 
served then they can appear before the Court. If the accused is 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
17
already in custody then by issuing production warrant for producing 
the accused before the Court, the proceedings are commenced in the 
Court. The words used in this section "brought" and "appear" are very 
significant which should be kept in mind for future reference. 
  
Under the scheme of Criminal Procedure Code, Chapter III, 
deals with general provisions which has only one Chapter namely 
Chapter VI "process to compel appearance". This is sub-divided into 
four chapters viz. "A" to "D". Sub-chapter "A" deals with summons, 
sub-chapter "B" deals with warrants of arrest, sub-chapter "C" deals 
with proclamation and attachment and sub-chapter "D" deals with 
other rules regarding process. Thus, under this Chapter, general 
provisions are provided for issuance of process to compel the 
appearance of all persons through summons, warrants and in case of 
non-compliance of warrants, then actions by issuing proclamations 
and attachment and then other rules regarding process. In this 
Chapter forms of summons, warrants, the officers who are competent 
to issue such process and who are to serve the process, the manner 
in which process are served and so on so forth are provided. The 
relevant sub-chapter is sub-chapter "D". It starts from sections 90 to 
93-C. Section 90 deals with the issuance of warrants in lieu of, or in 
additional to summons. Section 91 empowers the Court to take 
bonds for appearance when the persons against whom the process is 
issued by executing a bond with or without sureties. Sections 92 and 
onwards are not relevant for the purpose of present discussion. The 
important provision viz. section 91 reads as under:-- 
  
"Section 91. Power to take bond for appearance.--- 
When any person for whose appearance or arrest the 
officer presiding in any Court is empowered to issue a 
summons or warrant, is present in such Court, such 
officer may require such person to execute a bond, 
with or without sureties, for his appearance in such 
Court." 
  
A bare reading of this section reveals that when a person is 
present, in response to summons or warrant, before the Officer 
Presiding any Court who is empowered to issue summons or 
warrants then such officer may direct the said persons to execute a 
bond with or without sureties for his appearance in such Court. 
Usually under this provision when the complainant or witness 
appears before the Court in response to summons issued to them 
and the case is adjourned then bonds with or without sureties are 
taken from those persons for their appearance on the next date of 
hearing. However, the words "any person" used in this section are 
very wide. The said persons can be broadly divided into two 
categories:-- 
  
(1)  
Accused of an offence which is again sub-divided: 
  
 
(a)  
involved in bailable offence; 
  
 
(b)  
involved in non-bailable offence; 
 
 2)  
Any other person including complainant, witnesses or 
any person, whose appearance is required by the 
Court excepting above-named persons. 
  
The section 91 is appearing in the Part-III, Chapter VI, Cr.P.C. which 
contains general provisions relating to the process to compel 
appearance of any person. This Chapter would deal with any process 
issued against any persons under the Code. Thus, under this Part of 
Code, general powers have been given to the Court to deal with the 
issue of process and its related matters. 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
18
  
A perusal of criminal Procedure Code further reveals that 
there are supplementary provisions which have been enacted to 
supplement the other provisions which require further addition or 
clarification. Part-IX of Criminal Procedure Code deals with such 
provisions and its heading is "Supplementary provisions". The word 
"supplementary" is derived from the word "supplement". The 
dictionary meaning of word “supplement” is defined in Chambers 
Dictionary as under:-- 
  
"Supplement sup'li-ment, n that which supplies a 
deficiency or fills a need; that which completes or 
brings closer to completion; an extra part added (later) 
to a publication, giving further information or listing 
corrections to earlier mistakes". 
  
Thus, supplementary provisions have been enacted to supply 
deficiency or fill a need or give further information to already enacted 
provisions. This part has 9 Chapters starting from Chapters XXXVIII 
to XLVI. In order to make the point further clear, it is pointed out 
that Chapter XXXVIII is in respect of "the Public Prosecutor" starting 
from sections 492 to 495, Cr.P.C. dealing with the appointment of 
Public Prosecutor and their powers. In the Code wherever the word 
"Public Prosecutor" is mentioned, the same is to be interpreted within 
the provisions of Chapter XXXVIII. For example in section 265-A, 
Cr.P.C., the prosecution is to be conducted by a "Public Prosecutor" 
but there is no provision in the said section as to who would be the 
Public prosecutor, what will be his powers so on and so forth. 
Therefore, for these further clarifications, one has to refer to sections 
492, to 495, Cr.P.C. which are supplementary provisions to section 
265-A, Cr.P.C. where the word "Public Prosecutor" is mentioned. 
Therefore, section 265-A, Cr.P.C. is to be read with sections 492 to 
495, Cr.P.C. for the purpose of giving clarification to word "Public 
Prosecutor". 
  
Similarly in section 91, the word "bond" has been referred 
which is to be executed by a person who appears before the Court for 
his appearance either with or without sureties. No further details 
have been mentioned as to how the bond should be executed, 
forfeited, amount of bond, and instead of bond other recognizance 
can be executed so on and so forth; therefore, for those matters, we 
have to refer to other provisions of the Code. Chapter XLII "Provisions 
as to bonds" appearing in Chapter IX "supplementary provisions", 
would be referred to and read with section 91, Cr.P.C. dealing with 
above subject. Similarly under section 91, Cr.P.C. any person is to be 
released after executing bond. Any person, includes an accused of an 
offence. No further details have been mentioned in it as to how the 
accused person can be released in case of bailable or non-bailable 
offence. For obtaining further details and fill the deficiency of section 
91, Cr.P.C. Chapter-XXXII of Supplementary Provisions, Part-IX, 
Cr.P.C. "on bail" would be attracted which starts from sections 496 to 
502, Cr.P.C. which deal "in what cases bail is required to be taken till 
the discharge of the sureties". As such section 91 is to be read along 
with the sections 496 to 502, Cr.P.C. for the purpose of releasing the 
accused involved in bailable or non-bailable offences. 
  
A perusal of section 496, Cr.P.C. reveals that when any 
person is arrested, detained without warrants by Officer Incharge of a 
police station or appears or brought before the Court and is prepared 
to give bail then such person shall be released on bail. Under section 
497, Cr.P.C. if the accused person is involved in a non-bailable 
offence, then in such case where such person is arrested or detained 
without warrants by an Officer Incharge of a police station, or 
appears or is brought before the Court, he may be released on bail 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
19
but shall not be so released if there appears reasonable ground for 
believing that he has been guilty of an offence punishable with death 
or imprisonment for life or imprisonment for 10 years. Thus, under 
both these provisions, an order granting bail is to be passed before 
releasing an accused person who appears or is brought before the 
Court, and who is involved in a bailable or non-bailable offence. 
Without grant of bail such person cannot be released on bail. Bonds 
are to be executed after grant of bail. If section 91 is read with section 
496 and 497, Cr.P.C. then there will be no hesitation in holding that 
when an accused person involved in a case of bailable or non-bailable 
offence against whom the process is issued under section 204, 
Cr.P.C. then he is to be released on bail within the meaning of section 
496 or 497, Cr.P.C. as the case may be and then would execute 
bonds with or, without surety. The word "appears" or "brought" 
appearing in section 496 and 497, Cr.P.C. are the same words which 
have been used in section 204, Cr.P.C., for which I have already 
made such reference in the earlier part of the order. 
  
From the above position, it is clear that once the accused 
person or persons are brought or appear before the Court in 
pursuance of process under section 204, Cr.P.C. issued either on a 
police report, direct complaint or Magistrates own personal 
information, then the Court is required to decide as to whether the 
offences are bailable or non-bailable. If the offences are bailable then 
the Court shall release the accused on bail within the meaning of 
section 496, Cr.P.C. by passing appropriate order. However, if the 
offences are non-bailable, then the accused person or persons are 
required to be remanded to judicial custody or the Court may grant 
bail to them within the meaning of section 497, Cr.P.C. after 
complying the requirements of the said section by passing a speaking 
order. If the accused person or persons before the process is served 
upon them or bailable warrants are served want to invoke the 
provisions of pre-arrest bail as provided under section 498, Cr.P.C. 
then they can approach the appropriate Court for grant or otherwise 
of the pre-arrest bail by invoking the provisions of said section after 
satisfying the conditions mentioned therein. The provisions of 
sections 496, 497 and 498, Cr.P.C. have elaborately been discussed 
by the Honourable Supreme Court of Pakistan in cases Sadiq Ali v. 
State PLD 1966 SC 589 and Muhammad Ayoob v. Muhammad 
Yakoob PLD 1966 SC 1003. 
  
Thus, the section 91, Cr.P.C. cannot be applied in isolation, 
but it is to be applied and read with sections 496 and 497, Cr.P.C. for 
the purpose of release of an accused person against whom a process 
is issued under section 204, Cr.P.C. by the Court after taking 
cognizance on any source of information mentioned in section 190, 
Cr.P.C.  
  
In the present case, the offences were non-bailable. When the 
applicants appeared before the trial Court in pursuance of bailable 
warrants issued under section 204, Cr.P.C. for their appearance, the 
trial Court without granting bail within the meaning of section 497, 
Cr.P.C. released the applicants on the affidavits filed by the surety. 
The said procedure was not warranted by law; therefore, the trial 
Court was not justified in releasing the accused without granting of 
bail through an order passed under section 497, Cr.P.C. The trial 
Court is required to comply with provisions of section 497, Cr.P.C. in 
the direct complaint case. Thus, the arguments of the counsel for the 
applicants has no force that the trial Court had granted bail to the 
applicants.” 
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
20
16. 
In the later case of Zia-ur-Rehman Sajid v. Muhammad Aslam 
and another (2005 P.Cr.L.J. 1706) Maulvi Anwarul Haq, J. of the 
Lahore High Court, Lahore had followed the law declared by 
the High Court of Sindh, Karachi in the case of Noor Nabi 
(supra) and had also referred to the case of Khizer Hayat v. 
Inspector-General of Police (Punjab), Lahore and others (PLD 2005 
Lahore 470) wherein a Full Bench of the Lahore High Court, Lahore 
had referred to the case of Noor Nabi. It was observed by Maulvi 
Anwarul Haq, J. as reproduced below:   
“3.  
Learned counsel for the petitioner contends that the learned 
trial Court for all purposes has granted pre-arrest bail to the 
petitioner without a notice and without complying with the provisions 
of sections 496 and 497, Cr.P.C. According to him, provisions of 
section 91, Cr.P.C. arc to be read in conjunction with the said 
sections 496 and 497, Cr.P.C. He relies on the case of Noor Nabi and 
3 others v. The State 2005 PCr.LJ 505. Learned A.A.-G. states that a 
learned Full Bench of this Court, in its judgment dated 1-6-2005 
inter alia, in Writ Petition No. 11862 of 2004 (Khizar Hayat v. 
Inspector-General of Police (Punjab), Lahore and others) has 
approved the said dictum of the learned High Court of Sindh High 
Court at Karachi. Learned counsel for the respondent No. 1, on the 
other hand, contends that on a plain reading of section 91, Cr.P.C. 
the impugned order of the learned trial Court cannot be stated to be 
illegal. 
  
4.  
I have examined the available records as also the relevant 
provisions of Cr.P.C. in the light of said judgments. I deem it 
appropriate to reproduce hereunder the observations of my learned 
brother Asif Saeed Khan Khosa, J. who delivered the opinion of the 
Full Bench appearing at pages 43 and 44 of the said judgment:--- 
  
"The 
powers 
available 
during 
an 
investigation, 
enumerated in, Part V, Chapter XIV of the Code of 
Criminal Procedure, 1898 read with section 4(1)(1) of 
the same Code, include the powers to arrest an 
accused person and to effect recovery from his 
possession or at his instance. Such powers of the 
investigating officer or 
the 
investigating 
person 
recognize no distinction between an investigation in a 
State case and an investigation in a complaint case. In 
the case of Noor Nabi and 3 others v. The State 2005 
P.Cr.L.J. 505 a learned Judge-in-Chamber of the 
Honourable Sindh High Court has already clarified 
that section 91, Cr.P.C. deals only with procuring 
attendance of a person before the Court and after his 
availability before the Court the matter of his 
admission to bail or not rests in the hands of the 
Court and that the impression about automatic 
admission of an accused person to bail in a case of 
private complaint is erroneous." 
 
 
5.  
Now examining the present case in the light of the said 
judgment of the learned Full Bench cited by the learned A.A.-G. and 
the said judgment of the learned High Court of Sindh at Karachi in 
the case of Noor Nabi and 3 others, I find that notwithstanding the 
fact that the respondent No. 1 had put in appearance before the 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
21
learned trial Court, provisions of sections 496 and 497, Cr.P,C. had 
not been rendered ineffective and the learned trial Court has acted 
with lawful authority in assuming that the respondent No. 1 is 
entitled to automatic admission to bail. There was no power vesting 
in the learned trial Court to release the respondent No. 1 after taking 
him into custody without passing an order in terms of section 497, 
Cr.P.C. This criminal miscellaneous is accordingly treated as an 
application under section 561-A, Cr.P.C. and is allowed and the 
impugned order of the learned trial Court is set aside. The 
respondent No. 1 shall, however, be entitled to apply for grant of bail 
and if such an application is filed, the same shall be considered and 
decided by the learned trial Court after hearing the complainant as 
well as the State in accordance with law.” 
 
17. 
Still later in the case of Shaukat Rasool v. The State and another 
(PLD 2009 Lahore 590) Muhammad Khalid Alvi, J. of the Lahore High 
Court, Lahore decided on the same lines as was done in the case of 
Noor Nabi (supra) without referring to the said precedent case 
and it was held as follows:  
“6.  
Chapter VI of the Code of Criminal Procedure deals with 
process to compel service through summons, bailable or non-bailable 
warrants and ensure presence of persons connected with the inquiry 
or trial. Person may be a witness or an accused in such inquiry or 
trial. This Chapter does not deal with grant or refusal of bail to a 
person accused of bailable or non-bailable offence. Section 91 
referred by the learned counsel for the petitioners is reproduced as 
follows:-- 
  
"Power to take bond of appearance.--When any person 
for whose appearance or arrest the officer presiding in 
any Court is empowered to issue a summons or 
warrant, is present in such Court, such officer may 
require such person to execute a bond, with or without 
sureties, for his appearance in such Court." 
  
This section empowers a Court to require "any person" to 
execute a bond with or without surety for his appearance in such 
Court. Such person may or may not be an accused in the inquiry or 
trial before such Court he is merely being bound down by such bond 
to appear before the Court as and when required. 
  
7.  
So far as grant of bail is concerned, it is dealt with by Chapter 
XXXIX of the' Code of Criminal Procedure which deals with various 
categories of bails. Section 496 is reproduced as follows:-- 
  
"In what cases bail is to be taken.-- When any person 
other than a person accused of a non-bailable offence 
is arrested or detained without warrant by an officer 
incharge of a Police Station, or appears or is brought 
before a Court, and is prepared at any time while in 
the custody of such officer or at any stage of the 
proceedings before such Court to give bail, such 
person shall be released on bail. Provided that such 
officer or Court, if he or it thinks fit, may, instead of 
taking bail from such person, discharge him on his 
executing a bond without sureties for his appearance 
as hereinafter provided: 
  
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
22
Provided, further that nothing in this section 
shall be deemed to affect the provisions of section 107, 
subsection (4) or section 117, subsection (3)." 
  
This section deals with accused of non-bailable offences 
arrested or detained without warrant or appear or brought before the 
Court, such person "shall" be released on bail without any further 
formality provided the accused is ready to furnish bail. Meaning 
thereby that in such eventuality there is no discretion lying with the 
Court to refuse of grant bail. 
  
8.  
Section 497 deals accused of nonbailable offence, which is 
reproduced as follows:-- 
  
"When bail may be taken in case of non-bailable 
offence.-- (1) When any person accused of any non-
bailable offence is arrested or detained without 
warrant by an officer in charge of a police station, or 
appears or is brought before a Court, he may be 
released on bail, but he shall not be so released if 
there appear reasonable grounds for believing that he 
has been guilty of an offence punishable with death or 
[imprisonment] for life or imprisonment for ten years]:" 
  
Subsection (1) of section 497 Cr.P.C. divides accused persons 
of non-bailable offences in two categories; first category is of those 
accused persons who have allegedly committed offences which are 
punishable with less than 10 years and are non-bailable. This 
category of accused persons may be ordinarily admitted to bail 
keeping in view the facts and circumstances of the case. However, 
bail may be refused in exceptional circumstances, keeping in view the 
nature of offence, previous history of the accused, his conduct, 
repetition of offence by such accused etc. etc. Second category is of 
those accused persons who are guilty of offences punishable with 
more than 10 years. There is a bar for the grant of bail to such 
accused persons unless reasonable grounds are available for 
believing that he is not guilty of such an offence. 
  
9.  
In any case for the grant or refusal of bail under this provision 
discretion lies with the Court and has to be exercised judicially by 
application of mind. 
  
10.  
Another distinctive feature between sections 91 and 497 
Cr.P.C. is that in section 91 the Court is not required to issue notice 
to the prosecution while directing "any person" to execute bond. 
While under section 497 if the Court intends to admit an accused of 
non-bailable offence to bail a notice to prosecution is mandatory 
under the last proviso to subsection (1). 
  
11.  
Sections 498 and 498-A deal with the powers of Sessions 
Court and High Court to admit to bail even though he was not yet 
been arrested or detained in an offence which falls in the category of 
non-bailable offences. 
  
12.  
Under section 204 of the Cr.P.C. the Court after recording 
preliminary evidence is of the opinion that there are sufficient 
grounds to proceed further would issue process in the nature as 
provided in the 4th Column of the 2nd Schedule i.e. summons or 
warrants in the first instance. In response to such process if the 
accused person appears before the Court he not only may be required 
by the Court to execute a bond under section 91 Cr.P.C. but it shall 
also be required that his custody be handed over to a surety under a 
bail bond in terms of section 496 if the offence is bailable and in 
terms of section 497 if the offence is non-bailable. If the offence is 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
23
non-bailable the accused is necessarily required to be taken into 
custody by the Court and notice as required under the last proviso to 
subsection (1) of section 497 Cr.P.C. will be issued to the prosecution 
for the purpose of grant or refusal of bail to such an accused. 
  
13.  
Nutshell of the above discussion is that if a person accused of 
non-bailable offence is summoned by a Court under section 204 is 
not only required to execute bond under section 91 for his 
appearance but it is also required that either he be taken into 
custody by the Court and if he is to be released on bail then before 
such release a notice to prosecution is to be issued and the grant or 
refusal of bail is then to be examined on its own merits. It is thus 
evident that a person accused of non-bailable offence should either 
be in the custody of the Court or in the custody of a surety in terms 
of section 496 or 497. Execution of bond under section 91 does not 
qualify the above test. 
  
14.  
For what has been stated above, contention of the learned 
counsel for .the petitioners that furnishing of bond by the petitioners 
under section 91, Cr.P.C. is sufficient for their release on bail 
because conditions necessary to be examined for admitting a person 
accused of non-bailable offence are not considered while requiring 
bond under section 91.” 
18. 
In the case of Luqman Ali v. Hazaro and another (2010 SCMR 
611) decided by a 3-member Bench of this Court the judgment 
handed down was authored by Rahmat Hussain Jafferi, J. who was 
also the author of the judgment rendered by the High Court of Sindh, 
Karachi in the case of Noor Nabi (supra). In the judgment delivered in 
the case of Luqman Ali practically the same reasoning was re-
advanced as was advanced in the case of Noor Nabi (supra) and it was 
held as under:  
“7.  
Having heard the learned counsel for the parties, the 
respondent and perusing the record of the case very carefully, we find 
that the point involved in the case is interpretation of section 204, 
Cr.P.C. as the name of the respondent was put in Column No. 2 of 
the Challan because the police found him innocent but the 
respondent was joined as an accused person under the orders of the 
trial Court which has not been challenged anywhere as such it has 
attained finality. Thus, the respondent was an accused in a murder 
case which is punishable with death or imprisonment for life. 
  
8.  
In this case, after submission of Challan, the Judicial 
Magistrate took cognizance as provided under section 190, Cr.P.C. 
and sent up the case to the Court of Session where the cognizance 
was also taken as required under section 193(1), Cr.P.C. The case 
was assigned to IInd Additional Sessions Judge, who issued the 
process to the respondent mentioned in Colunm No. 2 of the Challan 
after joining and making him as an accused. The process in the 
shape of non-bailable warrants was issued to procure his attendance 
so as to commence the proceedings against him. The scheme of 
Criminal Procedure Code envisages three steps (i) initiation of 
proceedings which can be initiated after fulfilling one of the 
conditions, as provided under sections 190 to 199-B of Chapter XVB, 
Cr.P.C.; (ii) commencement of proceedings as provided under 
Chapter XVII, Cr.P.C. containing only two sections viz. 204 and 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
24
205; and (iii) the trial as provided under Chapters XX or XXII or 
XXII-A, etc. Cr.P.C. One of the conditions for initiation of 
proceedings is to take cognizance as required under section 190 
of Chapter XV-B, Cr.P.C. The heading of Chapter XV-B reads as 
under:--- 
  
"B-  
Conditions requisite for initiation of proceedings." 
  
Thus, under this Chapter, the cognizance is one of the conditions 
for initiation of proceedings. Once the proceedings are initiated 
then the same are required to be commenced which can only be 
done under section 204, Cr.P.C. of Chapter XVII, heading of 
which is as follows:- 
  
"Of the commencement of proceedings before Courts." 
  
9.  
It will be advantageous to reproduce section 204, Cr.P.C. 
to understand the scope of the said provision of law:--- 
  
"204. Issue of process.---(1) If in the opinion of a 
Court taking cognizance of an offence there is 
sufficient ground for proceeding, and the case 
appears to be one in which, according to the fourth 
column of the Second Schedule, a summons should 
issue in the first instance, {it} shall issue its 
summons for the attendance of the accused. If the 
case appears to be one in which, according to that 
column, a warrant should issue in the first 
instance, it may issue a warrant, or, if {it} thinks 
fit, a summons, for causing the accused to be 
brought or to appear at a certain time before such 
Court or if it has no jurisdiction itself some other 
Court having jurisdiction. 
  
(2)  
Nothing in this section shall be deemed to 
affect the provisions of section 90. 
  
(3)  
When by any law for the time being in force 
any process fees or other fees are payable, no 
process shall be issued until the fees are paid, and 
if such fees are not paid within a reasonable time, 
the Court may dismiss the complaint." 
  
Under subsection (1), if the Court, which is taking 
cognizance of the offence (under sections 190, 193, 194 and 200 
etc., Cr.P.C.) finds sufficient grounds for proceedings, then it can 
issue process according to Column No. 4 of 2nd Schedule to 
Cr.P.C. If the case is such where summons is required to be 
issued under 4th Column then summons shall be issued for 
attendance of the accused and if the case appears to be one in 
which according to said Column warrants should be issued then 
the Court may in the first instance issue warrants or if thinks fit 
summons can be issued for causing the appearance of the 
accused before the Court on certain date or if it has no 
jurisdiction then direction can be issued to appear before such 
other Court. Under subsection (2), the provisions of section 90, 
Cr.P.C. would not come in the way. 
  
10.  
Thus, the purpose of section 204, Cr.P.C. is to procure the 
attendance of the accused by issuing the required process. If the 
accused is in custody then such process can be issued by issuing 
production order to the jail authorities and if the accused is 
absconding then the process can be issued in the shape of 
warrants. It is pointed out that if the accused is absconding or 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
25
released then the name of accused of both the categories are 
required to be mentioned in Column No. 2 of the Challan with red 
and blue ink, respectively. Therefore, the process is to be issued 
to the accused, who is absconding and similar process can also 
be issued to an accused whose name is in Column No. 2 with 
blue ink after he is made an accused in the case. It will be noted 
that warrants are addressed to the Police Officer to arrest the 
person and produce him before the Court on a particular date. 
Thereafter the said warrants become ineffective unless extended 
or re-issued by the Court. Similar is the case with the bailable 
warrants under which the Police Officer is required not to arrest 
the accused if he furnishes surety before him for his appearance 
before the Court on the date mentioned in the warrants. After 
appearance of the said accused before the Court the said order 
ceases to exist unless the accused is released in accordance with 
law. 
  
11.  
In such a situation when the accused appears in 
pursuance of process under section 204, Cr.P.C. either through 
summons or warrants or bailable warrants or on his own and if 
the offence is non-bailable then the provisions of section 497, 
Cr.P.C. would be attracted and accused could only be released 
after moving such application and grant of the same. If no such 
application is moved or no bail is granted by any competent 
Court either under section 497 or 498, Cr.P.C., as the case may 
be, then the accused is required to be remanded to judicial 
custody till the time a proper order is passed either by the trial 
Court or by the superior Court. 
  
12.  
We have examined the order of the learned Additional 
Sessions Judge and find that the same is well-reasoned, based 
upon correct interpretation of relevant provisions of law and 
relying upon the case of Noor Nabi (supra). We have also 
examined the said judgment and found that the learned High 
Court examined in depth all the required provisions of law and 
interpreted the same in its true perspective. We have examined 
the impugned order of the learned High Court but are unable to 
persuade ourselves to agree with the finding arrived at by the 
learned High Court particularly releasing the accused without the 
grant of bail. Such release of the accused was unwarranted, 
illegal and against the provisions of sections 497 and 498, Cr.P.C., 
therefore, the said order cannot be sustained. 
  
13.  
In the light of what has been discussed above, the impugned 
order passed by the learned High Court is set aside and the remarks 
recorded against the learned Additional Sessions Judge are 
expunged. The respondent is directed to surrender before the trial 
Court immediately. However, he may move an application for grant of 
bail under section 497 or 498, Cr.P.C., as the case may be, which 
shall be decided in accordance with law and merits of the case.” 
 
19. 
The last reported case of this category of cases is the case of 
Amjad Iqbal v. Additional Sessions Judge, Bhalwal, District Sargodha 
and 9 others (PLD 2012 Lahore 33) wherein Ijaz Ahmad Chaudhry, 
C.J. of the Lahore High Court, Lahore (as his lordship then was) had 
expressly referred to and followed the law declared by this Court in 
the case of Luqman Ali (supra) and had observed as follows:  
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
26
“6.  
I have heard learned counsel for the parties and have also 
gone through the documents appended with this petition, in addition 
to the case law cited by learned counsel for the parties at the bar, in 
support of their respective pleas. During the course of hearing, I have 
noted that the question involved in this petition is that whether a 
court is competent to release the accused summoned in a private 
complaint upon his furnishing bail bonds or they are required to file 
independent bail petitions for their release. To resolve the 
controversy, perusal of sections 91 and 204 of Cr.P.C. would be 
imperative, which for convenience of reference are reproduced herein 
below: - 
  
"91.  
Power to take bond for appearance.-- When any 
person for whose appearance or arrest the officer 
presiding in any Court is empowered to issue a 
summon or warrant, is present in such Court, such 
officer may require such person to execute a bond, 
with or without sureties, for his appearance in such 
court." 
  
"204.  Issue of process.-- (1)  If in the opinion of a 
Court taking cognizance of an offence there is 
sufficient ground for proceeding and the case appears 
to be one in which, according to the fourth column of 
the second schedule a summons should issue in the 
first instant, it shall issue its summons for the 
attendance of the accused. If the case appears to be 
one in which, according to that column, a warrant 
should issue in the first instance, it may issue a 
warrant, or, if, it thinks fit, a summons for causing the 
accused to be brought or to appear at a certain time 
before such Court or (if it has not jurisdiction itself) 
some other court having jurisdiction. 
 
 
(2)  
Nothing in this section shall be deemed to 
affect the provision of section 90. 
 
 
(3)  
When by any law for the time being in force any 
process-fees or other fees are payable, no process shall 
be issued until the fees are paid, and, if such fees are 
not paid within a reasonable time, the Court may 
dismiss the complaint." 
 
A perusal of the aforementioned provisions makes it crystal clear that 
a court can call a person through summons or through warrants. The 
afore-quoted sections deal with the procedure regarding procurement 
of attendance of an accused. Once an accused appears before the 
court pursuant to the process issued to him, the purpose of afore-
mentioned sections comes to an end and then the court is to 
determine whether the offence is bailable or non-bailable. If according 
to the court, the offence is bailable, it will release the accused upon 
submission of bail bonds. In case, if the offence is non-bailable, the 
court shall either release them on bail upon an application or send 
them to the judicial lock up. According to the dictum laid down by 
the Hon'ble Supreme Court of Pakistan, in the case of Luqman Ali, 
supra, while dealing with such question the Hon'ble Supreme Court 
of Pakistan inter alia held as under: 
 
 
"In such a situation when the accused appears in 
pursuance of process under section 204, Cr.P.C. either 
through summons or warrants or bailable warrants or 
on his own and if the offence is non-bailable then the 
provisions of section 497, Cr.P.C. would be attracted 
and accused could only be released after moving such 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
27
application and grant of the same. If no such 
application is moved or no bail is granted by any 
competent Court either under section 497 or 498, 
Cr.P.C., as the case may be, then the accused is 
required to be remanded to judicial custody till the 
time a proper order is passed either by the trial Court 
or by the superior Court. 
 
 
We have examined the order of the learned Additional 
Sessions Judge and find that the same is well- 
reasoned, based upon correct interpretation of relevant 
provisions of law and relying upon the case of Noor 
Nabi (supra). We have also examined the said 
judgment and found that the learned High Court 
examined in depth all the required provisions of law 
and interpreted the same in its true perspective. We 
have examined the impugned order of the learned High 
Court but are unable to persuade ourselves to agree 
with the finding arrived at by the learned High Court 
particularly releasing the accused without the grant of 
bail. Such release of the accused was unwarranted, 
illegal and against the provisions of sections 497 and 
498, Cr.P.C., therefore, the said order cannot be 
sustained." 
  
As per the afore-referred judgment of the Hon'ble Supreme Court of 
Pakistan, if a person appears before the court pursuant to process 
under section 204, Cr.P.C. in a non-bailable offence, the court cannot 
release him merely on filing of surety bonds rather he can be released 
after giving bail.” 
 
20. 
A survey of the reported cases detailed above clearly shows that 
in the first category of cases in favour of acceptance of a bond under 
section 91, Cr.P.C. the case of Mazhar Hussain Shah v. The State 
(1986 P.Cr.L.J. 2359) decided by Muhammad Rafiq Tarar, J. of the 
Lahore High Court, Lahore was the foundational case and the order 
passed in that case was not only upheld by a 3-member Bench of this 
Court vide judgment dated 14.01.1987 passed in Criminal Appeal No. 
56 of 1986 (Reham Dad v. Syed Mazhar Hussain Shah & others) but 
the said order had also been approvingly referred to by another 3-
member Bench of this Court in the later case of Syed Muhammad 
Firdaus and others v. The State (2005 SCMR 784). As against that in 
the second category of cases in favour of bail under sections 496, 497 
or 498, Cr.P.C. the pivotal position is held by the case of Noor Nabi 
and 3 others v. The State (2005 P.Cr.L.J. 505) decided by Rahmat 
Hussain Jafferi, J. of the High Court of Sindh, Karachi and the 
reasons recorded in that case were subsequently repeated by the 
same Honourable Judge in his capacity as a Judge of this Court in 
the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
28
decided by a 3-member Bench of this Court. It is, thus, imperative to 
critically examine the cases of Mazhar Hussain Shah (supra) and Noor 
Nabi (supra) and all the precedent cases based on those cases so that 
the comparative merit of the two conflicting approaches may be 
assessed. 
 
21. 
The principles laid down by the Lahore High Court, Lahore in 
the case of Mazhar Hussain Shah (supra) were upheld by a 3-member 
Bench of this Court in its judgment dated 14.01.1987 passed in 
Criminal Appeal No. 56 of 1986 (Reham Dad v. Syed Mazhar Hussain 
Shah & others) and the said principles were subsequently approvingly 
referred to by another 3-member Bench of this Court in the case of 
Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) 
and also in the other cases belonging to the first category of cases 
mentioned above. After a careful perusal and examination of all the 
precedent cases belonging to this category of cases the principles laid 
down therein may be summarized as follows: 
 
(i) 
A process is issued to an accused person under section 204, 
Cr.P.C. when the court taking cognizance of the offence is of the 
“opinion” that there is “sufficient ground” for “proceeding” against the 
accused person and an opinion of a court about availability of 
sufficient ground for proceeding against an accused person cannot be 
equated with appearance of “reasonable grounds” to the court for 
“believing” that he “has been guilty” of an offence within the 
contemplation of sub-section (1) of section 497, Cr.P.C. Due to these 
differences in the words used in section 204 and section 497, Cr.P.C. 
the intent of the legislature becomes apparent that the provisions of 
section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for 
different situations.   
 
(ii) 
If the court issuing process against an accused person decides 
to issue summons for appearance of the accused person before it 
then the intention of the court is not to put the accused person under 
any restraint at that stage and if the accused person appears before 
the court in response to the summons issued for his appearance then 
the court may require him to execute a bond, with or without 
sureties, so as to ensure his future appearance before the court as 
and when required. 
 
(iii) 
If in response to the summons issued for his appearance the 
accused person appears before the court but fails to submit the 
requisite bond for his future appearance to the satisfaction of the 
court or to provide the required sureties then the accused person 
may be committed by the court to custody till he submits the 
requisite bond or provides the required sureties. 
22. 
As against that in the second category of cases the principles 
laid down by the High Court of Sindh, Karachi in the case of Noor Nabi 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
29
(supra) and iterated on the identical lines by a 3-member Bench of 
this Court in the case of Luqman Ali v. Hazaro and another (2010 
SCMR 611) and referred to and followed in the other cases of this 
category mentioned above may be encapsulated as follows: 
(i) 
The scheme of the Code of Criminal Procedure shows that 
institution of proceedings, commencement of proceedings before the 
court and trial before the court are dealt with therein separately and 
the provisions relatable to the same are different. Section 91, Cr.P.C. 
is a step relevant to commencement of proceedings before the court 
taking cognizance of the case. 
 
(ii) 
Any person appearing before the court or brought before the 
court upon issuance of summons or warrant against him may be 
required by the court under section 91, Cr.P.C. to execute a bond for 
his appearance before the court in future and this power is usually 
exercised in connection with appearance of the complainant or a 
witness so as to ensure his appearance before the court in future.    
 
(iii) 
When an accused person appears before the court or is 
brought before the court after issuance of summons or warrant 
against him he cannot be released upon execution of a bond under 
section 91, Cr.P.C. but he is either to be taken into custody or he 
may be released on bail under sections 496, 497 or 498, Cr.P.C. 
depending upon whether the offence in issue is bailable or non-
bailable.   
 
23. 
After carefully attending to the relevant statutory provisions of 
the Code of Criminal Procedure and after minutely examining all the 
precedent cases detailed above we may straightaway observe, and we 
observe so with great respect, that in the cases of Noor Nabi (supra) 
and Luqman Ali (supra) as well as in all the other cases falling in the 
second category of cases mentioned above different High Courts and 
even this Court had completely omitted from consideration that a 
contrary view in respect of the very issue under discussion had 
already been expressed by this Court in the cases of Reham Dad 
(supra) and Syed Muhammad Firdaus (supra) and in those cases the 
law declared by the Lahore High Court, Lahore in the case of Mazhar 
Hussain Shah (supra) had expressly been upheld and approvingly 
referred to respectively by different 3-member Benches of this Court. 
It is, thus, obvious that in the case of Noor Nabi the High Court of 
Sindh, Karachi could not take a view of the issue different from that 
already expressed by this Court. The judgment in the case of Luqman 
Ali was authored by the same Honourable Judge who was the author 
of the judgment in the case of Noor Nabi and in the case of Luqman Ali 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
30
too the earlier two judgments of this Court on the subject had 
completely been ignored. This oversight, if not a lacuna, in the 
judgments rendered in the cases of Noor Nabi and Luqman Ali and 
also in all the other cases wherein the ratio of the said two cases had 
been followed had substantially denuded all such judgments of their 
authoritative force besides completely impairing their persuasive value 
and it may be said with respect that the said judgments were 
rendered per incuriam.  
 
24. 
It has also been particularly noticed by us that in the case of 
Noor Nabi the High Court of Sindh, Karachi had made contradictory 
observations regarding the scope of section 91, Cr.P.C. On the one 
hand it had expressly been held in the judgment delivered in that case 
that the words “any person” in section 91, Cr.P.C. include an accused 
person who appears or is brought before the court upon issuance of 
summons or warrant against him but on the other hand it had also 
been observed in that judgment that the provisions of section 91, 
Cr.P.C. are usually utilized for securing and ensuring future 
appearance of a complainant or a witness before the court whereas 
the matter of an accused person is to be dealt with not under section 
91, Cr.P.C. but under sections 496, 497 or 498, Cr.P.C. This 
contradiction in the said judgment had remained completely 
unexplained and unresolved and in the case of Luqman Ali the 
judgment in the case of Noor Nabi had been expressly referred to, if 
not dittoed, and the learned author Judge of both of those judgments 
was one and the same Honourable Judge. 
 
25. 
In the context of the legal issue under discussion it is of critical 
importance to understand and appreciate the difference between a 
bail and a bond and unfortunately in the cases of Noor Nabi and 
Luqman Ali that difference and distinction had not been noticed or 
realized at all. A bail is a release from a restraint (actual, threatened 
or reasonably apprehended loss of liberty) and a bond is an 
undertaking for doing a particular thing and in the present context it 
is an undertaking for appearance before the court in future as and 
when required to do so. A bond invariably stipulates a penalty for 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
31
non-fulfillment of the undertaking and in case of failure to fulfill the 
undertaking the bond may be forfeited and the stipulated penalty may 
be imposed in full or in part. It had not been appreciated in the cases 
of Noor Nabi and Luqman Ali that in a case of issuance of summons 
against an accused person under section 204, Cr.P.C. such person is 
under no actual, threatened or reasonably apprehended restraint at 
the time of his appearance before the court and, thus, his applying for 
bail is not relevant at such a stage and if he undertakes before the 
court to keep on appearing before the court in future as and when 
required to do so then he may be required to execute a bond, with or 
without sureties, in support of such undertaking. The position may, 
however, be different where the process issued against the accused 
person under section 204, Cr.P.C. is through a warrant, bailable or 
non-bailable, in which case the accused person may come under an 
actual, threatened or reasonably apprehended restraint. In such a 
case the accused person may choose to apply for bail which may or 
may not be allowed by the concerned court. Even in such a case upon 
appearance of the accused person before the court or upon his having 
been brought before it the court concerned may, if it thinks 
appropriate, require the accused person to furnish a bond, with or 
without sureties, without even considering bail to be necessary 
because issuance of a warrant, bailable or non-bailable, was meant 
only for procuring attendance of the accused person before the court 
and not for any other purpose.  
 
26. 
In the backdrop of what has been observed by us in the 
preceding paragraph we deem it necessary to discuss the concepts of 
restraint, bail and bond in some detail because a proper 
understanding of the said concepts holds the key to the legal issue 
under discussion. So far the most illustrative and illuminating 
judgment rendered in respect of such concepts has been the one 
handed down in the case of The Crown v. Khushi Muhammad (PLD 
1953 Federal Court 170). It was a case decided by a 3-member Bench 
of the erstwhile Federal Court of Pakistan, the predecessor Court of 
this Court, and the subject under discussion was the scope of filing of 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
32
an application for pre-arrest bail in a criminal case. In that case 
Abdul Rashid, C.J. had observed as follows:     
 
“It appears to me to be obvious from the above observation 
that section 498 does not in any way enlarge the categories of 
persons to whom bail can be granted under Chapter XXXIX. This 
necessarily leads to the inference that such persons must be under 
custody before they can be given any relief by the High Court or the 
Court of Session. 
 
Under sections 496 and 497 an accused person can be 
released on bail. This presupposes that the accused person is under 
some sort of restraint. If section 498 is ancillary or subsidiary to 
sections 496 and 497 it cannot be said that this section empowers 
the highest Court to grant bail to persons who have not been put 
under any restraint whatever. If this were so, the ancillary and 
subsidiary section would be enlarging the powers granted to the 
Courts under the principal sections, namely, 496 and 497. It is 
difficult to hold that the legislature would embody in a subsidiary or 
ancillary section a provision which deals with persons other than 
those who fall within the purview of sections 496 and 497. If section 
498 were given the wide interpretation envisaged in the case of 
Hidayat Ullah Khan (supra), section 498 would not be ancillary or 
subsidiary, but would be wholly independent of the powers conferred 
on the High Court or the Court of Session by sections 496 and 497.  
 
In order to support the interpretation placed on section 498 of 
the Code in the case of Hidayat Ullah Khan (supra), Mr. Qalandar Ali 
Khan contended, on behalf of the respondent, that as soon as the 
respondent had made an application to the Court asking for grant of 
bail he had appeared before the Court and that such appearance 
must be regarded as a surrender to the custody of the Court. It was 
urged that, under the circumstances, he could be admitted to bail 
under the provisions of section 498 as he had appeared in Court 
under section 497. This argument of the counsel leads to 
extraordinary results. If a person who appears before the High Court 
under section 497, is taken to be in the custody of the Court merely 
because of his appearance, it is difficult to imagine what would 
happen to him if the Court rejects his application for bail. He appeared 
in Court as a free man. Is the Court bound to keep him in custody and 
send him to jail simply because it rejects his application? If so, under 
what provision of the Code? The failure of his application would 
therefore deprive a suspected person of his freedom. What is the Court 
to do with him is another difficult question? He comes into Court 
protesting that he is innocent and there is no case against him. The 
Court decides not to accept his application for bail. He cannot be 
required to execute any bail bonds under the provisions of section 499 
of the Code. It is clear, therefore, that the making of an application for 
bail and his presence in Court cannot be regarded as appearance 
under section 497 of the Code. In fact, in Hidayat Khan's case (supra) 
it was pointed out by the learned Judges of the High Court that 
nowhere in law was there to be found any warrant for the plea that a 
Court possesses any power to take into custody a person offering 
himself for the purpose if there be no justification for the Court to 
exercise the power of taking such person into custody. When a person 
appears before the High Court merely to present an application for bail, 
without any warrant for his arrest having been issued, he is not 
appearing in respect of any offence of which the High Court is taking 
cognizance at the time and his appearance before the Court cannot be 
regarded as a surrender to custody.  
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
33
It was urged by Mr. Sleem that "admitting to bail" is also 
placing a person under some form of restraint. Reference was made 
in this connection to section 308 of the Code where it is laid down 
that whenever the jury is discharged the accused shall be "detained 
in custody or on bail as the case may be." The word "detained" 
applies both to custody and to the enlargement of a person on bail. 
The grant of bail to accused person is merely the substitution of one 
type of restraint for another type of restraint. If through mistake, 
fraud, or otherwise, a person has been enlarged on bail on 
insufficient sureties, or if they afterwards become insufficient, the 
Court may issue a warrant of arrest directing that the person 
released on bail be brought before it and may order him to find 
sufficient sureties, and on his failing so to do, may commit him to 
jail. It is possible to conceive of cases where a person has 
unnecessarily applied for anticipatory bail and has been released on 
executing a bail bond with sureties. He might never have been 
arrested by the police but being released on anticipatory bail he has 
made himself liable to be committed to prison if his sureties become 
insufficient after bail has been taken. It may be that at one stage or 
another the surety of a person who has been given bail desires to be 
discharged and such person is unable to find a new surety. In these 
circumstances, a person who would never have been arrested 
otherwise may be arrested and committed to prison. The provisions of 
section 498 of the Code cannot be interpreted in manner which lead to 
such absurd results. 
 
The basic conception of the word "bail" is release of a person 
from the custody of police and delivery into the hands of sureties, who 
undertake to produce him in Court whenever required to do so. This is 
the meaning which has been given to the word "bail" in Standard 
English Dictionaries as well as in Wharton's Law Lexicon and Stroud's 
Judicial Dictionary. This is also borne out by the form of bond and bail 
bond given in Schedule V of the Cr.P.C. This basic conception of the 
meaning of the word "bail" has not been adverted to in the Full Bench 
judgment in the case of Hidayat Ullah Khan (supra). 
  
Reliance has been placed by the learned Judges of the High 
Court on the case of Johur Mull and others (10 C W N 1093). In that 
case there was a murder in Calcutta. Four persons were arrested on 
suspicion by the police and their cases were pending before the 
Second Presidency Magistrate. Meanwhile, Johur Mull and others 
were also suspected and non-bailable warrants for their arrest were 
issued. Thereupon they made an application for bail in the High 
Court before they had surrendered. The only objection that was taken 
to the application by the Offg. Standing Counsel was that in murder 
cases ordinarily no bail should be taken. It was observed by Mitra, J. 
that ordinarily they did not allow bail in cases like the present, but 
they had power under section 498 of the Code to direct that any 
person should be admitted to bail in any case. This case is 
distinguishable as the issuing of a non-bailable warrant may be 
treated as imposing a certain amount of restraint on the accused. If the 
words "in any case" could be taken to include every accused person 
including a convict or a person who has not been taken into custody, 
there would have been no necessity to enact section 426 of the Code, 
or to insert subsection (2-B) in section 426 which was done in 1945. 
A person who had been granted special leave to appeal to His 
Majesty-in-Council could then be admitted to bail under section 498 
on the ground that the words "in any case" cover the case of a convict 
who has preferred an appeal to His Majesty-in-Council. 
 
It has been observed by the Lahore High Court in Hidayat 
Ullah Khan's case (supra) that it is conceivable to think of cases 
where credible information has been laid before a police officer that a 
certain person is guilty of a non-bailable offence not punishable with 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
34
death or transportation for life, that he is in the presence of the police 
officer at the time when information is received, and that in such a 
case there will be no contravention of anything contained in the Code 
if the police officer grants bail to such a person forthwith without 
going through the formality of arresting him. This observation seems 
to imply that the arrest of a person necessarily means the use of force 
against him in order to bring him under restraint by the police 
officer. Section 46 of the Code lays down that "In making an arrest 
the police officer or other person making the same shall actually 
touch or confine the body of the person to be arrested, unless there 
be a submission to the custody by word or action". In the case 
referred to above, there would be a submission to the custody of the 
police officer by word or action and the police officer could thereupon 
release the person on bail under section 169 or section 497 of the 
Cr.P.C. The police officer, in the circumstances, could act only under 
section 169 or section 497 which deal with release on bail and the 
word "release" necessarily implies freedom from some sort of restraint. 
 
A brief reference may now be made to cases which have taken 
a view contrary to the one taken by the Full Bench of the Lahore High 
Court in the case of Hidayat Ullah Khan (supra). On the 19th of 
October, 1943 Mr. Justice Blacker delivered judgment in a case 
(Criminal Miscellaneous No. 743 of 1943) in which an application had 
been made by one K. S. Sobti that he be admitted to bail under the 
provisions of section 498 of the Cr.P.C. It was stated in the petition 
that the petitioner was in no sort of custody, nor was he under any 
form of restraint. It was pointed out by the Advocate-General that the 
police had not yet even decided whether they will prosecute Sobti as 
there was a great deal of material to be sifted, and they were not 
certain whether the material would be sufficient for the prosecution 
of the petitioner. The learned Judge came to the conclusion that 
section 498 could not be availed of by any one who was not in custody 
and against whom no warrant for arrest had been issued. A Full 
Bench of the East Punjab High Court has held in Amir Chand v. The 
Crown (AIR 1950 East Punjab 53) that the very notion of bail 
presupposes some sort of previous restraint. Bail, therefore, could not 
be granted to a person who had not been arrested and for whose 
arrest no warrants had been issued. Section 498 of the Code did not 
permit the High Court or the Court of Session to grant bail to persons 
whose case was not covered by sections 496 and 497. The judgment 
of the Lahore High Court, in the case of Hidayat Ullah Khan (supra), 
the decision of Munir, J. (Now C.J.) in Khawja Nazir Ahmad v. The 
Crown (Cr. Misc. No. 592 of 1943), the decision of Blacker, J., 
referred to above, and some authorities of the Sind Chief Court were 
discussed in great detail in this case. Reference was also made in the 
judgment of Kapur, J., to statute law in England and it was pointed 
out that in spite of the fact that the words "admitted to bail' had been 
uniformly used in English statutes there was no case which purported 
to show that bail had ever been granted to a person who was not 
under restraint. 
 
The learned Judges of the Sind Court have also dealt with this 
matter in the case of Muhammad Abbas v. The Crown (PLR 1949 Kar. 
95 = PLD 1950 Sind 80). It was pointed out in this case that it would 
be contrary to every judicial principle for a high judicial authority to 
exercise a revisional power like that conferred by section 498 of the 
Code to interfere by giving directions in anticipation to a subordinate 
authority before the subordinate authority had exercised jurisdiction 
legally conferred upon it. The existence of a concurrent power in the 
High Court with that of the Magistrate in granting bail was negatived. 
It was pointed out that all persons who can be admitted to bail under 
Ss. 496 and 497 must be in the custody of the police or in the custody 
of the Court as otherwise the words "shall be released on bail" would 
have no meaning. It was also observed that where a person is admit-
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
35
ted to bail he has to execute a bond and his surety or sureties have to 
execute bail bonds and the time when the person released is required 
to be present before the Court is to be entered in those bonds. 
Various other entries have also to be made in the bail bond. such as, 
the offence with which the accused is charged, and the bail bonds are 
intended to secure the appearance of persons who have been arrested 
and whose presence is required by Court. The terms of these 
documents make it clear that they can only be executed by persons 
who are under arrest or in custody. It is unnecessary to examine all 
these authorities in detail as all of them rely to a great extent on the 
observations made by their Lordships of the Privy Council in the case 
of Jairam Das (supra) and on the basic conception that bail means a 
release of a person from one type of restraint, and his being handed 
over to the sureties which is another type of restraint. 
 
After a careful examination of the provisions of sections 496, 
497 and 498 of the Code I have reached the conclusion that a person 
cannot be admitted to bail against whom a report has been lodged at 
the police station but who has not been placed in custody, or under 
any other form of restraint, or against whom no warrant for arrest has 
been issued. In the case of a person who is not under arrest, but for 
whose arrest warrants have been issued, bail can be granted under 
section 498 if he appears in Court and surrenders himself.” 
 
(Italics and underlining have been supplied for emphasis) 
 
In the same case A. S. M. Akram, J. had recorded the following 
observations in his lordship’s separate opinion: 
 
“On the 20th October, 1950, one Muhammad Sadiq made a 
report at the Police Station Khudian, District Lahore, to the effect 
that the respondent, Khusi Muhammad, and four others had 
abducted his daughter Mst. Mumtaz Begum on the 16th of October, 
1950. The police took up investigation and arrested the four others, 
who were subsequently released on bail. No effort at arresting the 
respondent Khusi Muhammad was, however, made at any time, but 
Khushi Muhammad became apprehensive and in anticipation of his 
possible arrest made an application before the Sessions Judge of 
Lahore, praying that he may be "released on bail pending 
investigation and trial, if any". The Sessions Judge refused bail and 
rejected his application on the 15th November, 1950. Khushi 
Muhammad thereupon made an application to the High Court of 
Judicature at Lahore, purporting to be one under section 498, Cr. P. 
C. for 'bail before arrest'. The High Court relying upon the Full Bench 
Decision in the case of Hidayat Ullah Khan v. The Crown (supra) 
allowed the application by order dated the 14th of December, 1950, 
and directed that "if it is intended to arrest him (applicant), he should 
be released by the District Magistrate, if a bail bond is furnished to 
his satisfaction". Against this order the present appeal by the Crown 
has been preferred with our leave. 
 
Counsel for the appellant challenges before us the validity of 
the High Court order on the short ground that no bail can be granted 
unless the person seeking for it is under legal custody. In support he 
cites the cases of Muhammad Abbas and others v. Crown (supra) and 
Amir Chand and another v. The Crown (supra). His contention is that 
the view taken in the Full Bench case of Hidayat Ullah Khan v. The 
Crown is erroneous and cannot be given effect to. This case has been 
fully discussed and considered in the two cases mentioned above, in 
which a contrary view has been expressed and which has laid down 
that anticipatory bail is not permissible under the law. I do not think 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
36
it will serve any useful purpose to reproduce here the elaborate 
arguments contained in the judgments of these two cases. The 
decision to the effect that unless a man is under custody no question 
of bail can arise seems to me to be a correct decision on a proper 
construction of the relevant sections of the Code. The main argument 
advanced by counsel for the parties regarding the point under 
consideration was practically the same as in the cases referred to 
above. Learned counsel for the respondent urged before us, that the 
provision in section 498, Cr.P.C. “the High Court or Court of Session 
may, in any case, -------------- direct that any person be admitted to 
bail --------------”, was wide enough to cover the case of a person not 
under custody: that the word `appears' in sections 496 and 497 
Cr.P.C., not being qualified in any manner, also conveys the same 
meaning: that the expression `admitted to bail' in section 498 Cr.P.C. 
does not imply prior custody: that this interpretation would not in 
any way militate against the observation of their Lordships of the 
Judicial Committee in the case of Lala Jai Ram Das v. The King 
Emperor (supra) "that sections 496 and 497 provide for granting bail 
to accused persons before trial and the other sections of the chapter 
(Chapter XXXIX) deal with matters ancillary or subsidiary to that 
provision" that the scope of section 498 in no way gets wider than 
that of sections 496 and 497 in case these sections are construed in 
the manner suggested. But, one cannot take merely a single word out 
of a section regardless of its context and setting and then construe 
the section in the light of the natural meaning which the word 
ordinarily bears. A section should be construed as a whole keeping in 
view the manifest purpose for which it is enacted. The expression "be 
released on bail" which occurs in both sections 496 and 497 provides 
a clue as to the real meaning of the word 'appears' in those sections. 
"Be released on bail" pre-supposes that the person must either be in 
actual custody or be liable to be taken into custody under a warrant of 
arrest already issued or ordered to be issued. In the latter events he 
must as a matter of course surrender before he can be released on 
bail. The word 'appears' therefore, must be limited in its meaning so 
as to apply only to the aforesaid persons. If this be correct then 'any 
person' in section 498 cannot be construed so as to enlarge the class 
of persons contemplated by sections 496 and 497. The expression 
"admitted to bail" in section 498 and 'released on bail' in sections 496 
and 497 is obviously synonymous and to seek to differentiate 
between the two would be an attempt to make a distinction without 
difference. The Code itself at times gives directions that persons 
arrested may be "admitted to bail" (see sections 62, 307(2) and 500 of 
the Cr.P.C). In truth the word 'bail' signifies only a change of custody 
or control a change from the rigour of police custody or jail custody to 
the mild control of private persons (the sureties) upon certain terms and 
conditions. In Chapter XXXIX of the Cr.P.C. which includes sections 
496, 497 and 498 the heading given is 'Of Bail'. The contention, 
therefore, of counsel for the respondent that a person under no sort of 
restraint and at full liberty to go anywhere he pleases, can be released 
or admitted to bail, does not appear to me to be a sound one. I do not 
think it is necessary to pursue this matter further as I fully agree in 
this particular respect with the decision in the cases of Muhammad 
Abbas and others v. The Crown and Amir Chand and another v. The 
Crown, and in the reasons given in support thereof. In my opinion 
neither section 498 nor any other section of the Cr.P.C. is applicable 
to the facts and circumstances of the present case. The order for bail 
dated the 14th December, 1950, must, therefore, be set aside as 
without jurisdiction.” 
 
(Italics and underlining have been supplied for emphasis) 
 
 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
37
M. Shahabuddin, J. had also recorded his own opinion in that case 
and this is what his lordship had held: 
 
“This appeal raises the question whether under section 498, 
Cr.P.C., the High Court or Court of Session can grant bail to a person 
against whom information has been given to the police that he has 
committed an offence for which he may be arrested, but who has not 
yet been placed under restraint by arrest or otherwise.  
--------------------- 
--------------------- 
It is true that the question now under consideration was not 
before Their Lordships, but the importance of this decision lies in this 
that, even though there was no provision for releasing on bail a 
convicted person whom special leave to appeal had been given, and 
the utility of the High Court having power to release such persons on 
bail was fully appreciated, it was not possible to take the expressions 
'in any case' and 'any person' in section 498 in their literal meaning 
owing to the context in which they are used. It may be said that as 
Their Lordships have observed that 'any person' means any accused 
person and as a person whom a complaint alleging an offence is 
made is also an accused person, bail under section 498 can be 
granted to him. But Their Lordships have also laid down that the 
principal sections relating to bail are 496 and 497 and the rest of the 
sections in Chapter 39 deal with matters ancillary and subsidiary to 
sections 496 and 497. Under the latter two sections bail can be 
granted only to persons who are in some sort of custody and not to 
those who are at liberty. That being so, section 498 cannot be 
construed as applicable to persons who are under no restraint at all, 
for, if it is so interpreted it ceases to be a provision dealing with 
matters ancillary or subsidiary to sections 496 and 497. In my 
opinion therefore the expressions, 'any case' and 'any person' 
occurring in section 498 refer only to persons coming under sections 
496 and 497. 
 
Mr. Qalandar Ali Khan appearing for the respondent argued 
that the appearance of a person before the High Court to ask for bail 
even when he is free amounts to his placing himself in legal custody. 
A similar contention was raised before the Full Bench by the 
petitioners in that case but Cornelius, J. repelled it observing as 
follows:- 
 
"Nowhere in law is there to be found any warrant for 
the belief that a Court possesses any power to take 
into its custody a person offering himself for the 
purpose if there be no justification in law for the Court 
to exercise the power of taking such person in 
custody." 
 
I agree with this observation and I also agree with the further 
observation of the learned Judge in this connection that it is 
reasonable to suppose that the Code has provided for the grant of 
bail to persons in relation to the power it has given to Courts to 
compel their attendance. In the present case the respondent when he 
appeared before the High Court was under no restraint whatever. The 
police had not taken any action, nor was there anything to compel this 
attendance before a Court. There is therefore no substance in the con-
tention of the learned Advocate. 
 
Apart from section 498 being ancillary to sections 496 and 
497, I fail to see how, in view of the connotation of the term 'bail' a 
person who is under no restraint whatever can be released on bail. 
'Bail' is not defined in the Code, but it is clear from its dictionary 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
38
meaning and its definition in Wharton's Law Lexicon that it necessarily 
implies an existing custody. It is also clear that when a person is 
released on bail he is not altogether free but on the other hand passes 
into the custody of his sureties, in Foxhall v. Barnet (1854 L J New 
Series Vol. 23 p. 7) a case for damages for false imprisonment cited 
by Mr. Sleem, Lord Coleridge observed: "the admitting to bail is only 
change of custody. The bail might have retaken him and sent him 
back to prison at any time". The same principles exist in the law 
applicable to this country. For instance, section 308 refers to bail as 
detention. It provides that when the jury is discharged the accused 
shall be detained in custody or on bail. Under sections 501 and 502, 
if the sureties are found to be insufficient or wish to be discharged 
the person released on bail becomes liable to be committed to prison 
unless he furnished the required security. I therefore consider that 
subjection to some form of custody is a condition precedent to the grant 
of bail.  
--------------------- 
--------------------- 
The learned Judge has referred to the case of Johar Mull and 
others (supra) as supporting his view; but there, the present question 
was neither raised nor discussed. The contention on behalf of the 
Crown in that case appears to have been only that bail ought not to 
be allowed in cases of murder. The learned Judges of the Calcutta 
High Court no doubt observed at the outset that they had power 
under section 498 to direct that any person should be admitted to 
bail in any case, but in fact they proceeded on the basis that they 
could "revise the order of the Magistrate and say that he should have 
exercised his discretion in granting bail". In that case the Magistrate 
had issued a non-bailable warrant for the arrest of the petitioners 
who appeared before the High Court. That decision does not lay down 
that bail can be granted to a person even when he is under no 
restraint. On the other hand it seems to me that the petitioners in 
that case can be said to have appeared before the High Court in the 
sense in which the word `appear' is used in sections 496 and 497. As 
pointed out earlier mere appearance when there is no justification for 
the Court to take the person appearing into custody is not the 
appearance before Court required for the grant of bail, but when 
against the person who appears before a High Court a warrant for his 
arrest has already been issued by the Court of first instance it cannot 
be said that the High Court has no justification to take him into 
custody. In Muhammad Abbas v. Crown (supra) where the question 
for decision was the same as here. Tyabji C.J. has observed that the 
power conferred under section 498 is of a revisional character and 
that a higher Court should not interfere before the subordinate Court 
exercises its discretion. I am unable to accept this view. Ordinarily 
the higher Court may not interfere unless the petitioner has moved 
the Court of first instance, but I do not think that it can be said that 
there is a legal bar to a higher Court exercising a power in the first 
instance unless the section under which it acts states to that effect. 
Under section 498 the bail required by the police officer or Magistrate 
may be reduced by the High Court or Court of Session. There is 
nothing in the section to indicate that the High Court can reduce the 
bail only after the Session Court has declined to do so. That being so, 
I can see no objection to the High Court or Court of Session, like the 
Court of first instance, exercising the power of granting bail to a person 
against whom a non-bailable warrant has been issued, if he appears 
in Court and surrenders himself. 
 
In Muhammad Abbas v. Crown to which reference has been 
made above and in Amir Chand v. Crown the Full Bench decision of 
the Lahore High Court was considered and dissented from. In those 
cases the applicants for bail were persons under no restraint 
whatever. They had not been arrested by the police, nor had warrants 
been issued for their arrest. It was held that they could not be released 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
39
on bail under section 498. For reasons stated above, I consider that 
this conclusion and not the one reached by the Full Bench of the 
Lahore High Court is correct. Tyabji, C.J. in the Sind case has 
observed that the power of the High Court and Court of Session 
under section 498 is not affected by the limitations on the grant of 
bail imposed in section 497 and Cornelius, J. in the Full Bench case 
has expressed the same view. Khosla, J. of the East Punjab High 
Court, however, is of opinion that after the decision of the Privy 
Council in Lala Jairam Das's case (supra) that view cannot be 
regarded as correct. For the purposes of the present case I do not find 
it necessary to deal with this point, for, even if it is assumed that the 
power under section 498 is unfettered by the limitations imposed in 
section 497 the fact still remains that that power can be exercised only 
for granting bail, and as 1 have already stated some sort of custody is 
a condition precedent to the grant of bail.” 
 
(Italics and underlining have been supplied for emphasis) 
 
 
27. 
The masterly analysis of the relevant legal question undertaken 
in the above mentioned case leaves no room for doubt that the matter 
of bail in a criminal case, be it a Challan case or a case arising out of 
a private complaint, is relevant only where the accused person 
concerned is either under actual custody/arrest or he genuinely and 
reasonably apprehends his arrest on the basis of some process of the 
law initiated either by a court or by the police. It is but obvious that 
issuance of process by a court through summons for appearance of 
an accused person before the court neither amounts to arrest of the 
accused person nor it can ipso facto give rise to an apprehension of 
arrest on his part and, thus, such accused person cannot apply for 
pre-arrest bail and even if he applies for such relief the same cannot 
be granted to him by a court. It may be important here to refer to the 
case of Muhammad Muddasar v. The State and others (2011 SCMR 
1513) wherein the accused person against whom process had been 
issued by the trial court under section 204, Cr.P.C. through summons 
in a complaint case was admitted by this Court to pre-arrest bail 
because after issuance of summons the trial court had directed arrest 
of the accused person and through such direction of the trial court 
the accused person had come under a restraint. Ever since the case of 
The Crown v. Khushi Muhammad (PLD 1953 FC 170) the legal position 
is quite settled that both in a Challan case and a complaint case pre-
arrest bail can be granted to an accused person only where there is a 
genuine and established apprehension of his imminent arrest in 
connection with such case with the effect of a virtual restraint on 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
40
such accused person and a reference in this respect may be made to 
the subsequent cases of Sadiq Ali v. The State (PLD 1966 SC 589), 
Chiragh Shah and another v. The State (1969 SCMR 134), Sh. Zahoor 
Ahmad v. The State (PLD 1974 Lahore 256), Murad Khan v. Fazal-e-
Subhan and another (PLD 1983 SC 82), Jamal-ud-Din v. The State 
(1985 SCMR 1949), Meeran Bux v. The State (PLD 1989 SC 347), 
Ajmal Khan v. Liaqat Hayat (PLD 1998 SC 97) and Syed Muhammad 
Firdaus and others v. The State (2005 SCMR 784). It had also been 
held in those and many other cases that for admitting an accused 
person to pre-arrest bail in a criminal case the court concerned has 
to be satisfied that the intended or apprehended arrest of the 
accused person is actuated by ulterior motives or mala fide on the 
part of the complainant party or the police. When an accused 
person appears before a court which has issued summons for his 
appearance under section 204, Cr.P.C. on the basis of a private 
complaint the accused person is still unaware of the exact nature of 
the allegations leveled against him or about the basis of his 
summoning by the court and, therefore, he is not expected to be in 
any position at that stage to urge or substantiate before the court 
that the private complaint instituted against him is actuated by 
malice. Apart from that in the case of Sh. Zahoor Ahmad v. The State 
(PLD 1974 Lahore 256) Muhammad Afzal Zullah, J. (as his lordship 
then was) had summed up the basic conditions to be satisfied before 
exercise of jurisdiction of a court to allow pre-arrest bail under section 
498, Cr.P.C. in all kinds of criminal cases and they are: 
 
“(a) 
that there should be a genuine proved apprehension of 
imminent arrest with the effect of virtual restraint on the petitioner; 
 
(b) 
that the petitioner should physically surrender to the court; 
 
(c) 
that on account of ulterior motives, particularly on the part of 
the police, there should be apprehension of harassment and undue 
irreparable humiliation by means of unjustified arrest;  
 
(d) 
that it should be otherwise a fit case on merits for exercise of 
discretion in favour of the petitioner for the purpose of bail. In this 
behalf the provisions contained in section 497, Cr.P.C. would have to 
be kept in mind; 
 
(e) 
that unless there is reasonable explanation, the petitioner 
should have earlier moved the Sessions Court for the same relief 
under section 498, Cr.P.C.” 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
41
 
Those conditions and requirements have consistently been insisted 
upon by all the courts in the country as prerequisites ever since and 
one of such prerequisites for pre-arrest bail is that the accused person 
applying for such relief must have a good case for bail on the merits 
and for having a good case for bail on the merits the requirements of 
section 497, Cr.P.C. have to be kept in mind which requirements are 
totally different from those contemplated by the provisions of sections 
204 and 91, Cr.P.C. as was noticed by the Lahore High Court, Lahore 
in the case of Mazhar Hussain Shah (supra) and by this Court in the 
cases of Reham Dad and Syed Muhammad Firdaus (supra). 
Unfortunately all these critical aspects of the matter had completely 
escaped notice of the Honourable Judges deciding the cases of Noor 
Nabi and Luqman Ali (supra) and it had been held in those cases as a 
matter of course that after having been summoned by a court to 
appear before it the accused person concerned has to apply for bail or 
he has to be committed to custody. It is regrettable that before holding 
that their lordships’ attention had not been drawn towards the 
following observations made by Abdul Rashid, C.J. in the above 
mentioned case of The Crown v. Khushi Muhammad (PLD 1953 
Federal Court 170):   
 
“If a person who appears before the High Court under section 497, is 
taken to be in the custody of the Court merely because of his 
appearance, it is difficult to imagine what would happen to him if the 
Court rejects his application for bail. He appeared in Court as a free 
man. Is the Court bound to keep him in custody and send him to jail 
simply because it rejects his application? If so, under what provision 
of the Code? The failure of his application would therefore deprive a 
suspected person of his freedom. What is the Court to do with him is 
another difficult question? He comes into Court protesting that he is 
innocent and there is no case against him. The Court decides not to 
accept his application for bail. He cannot be required to execute any 
bail bonds under the provisions of section 499 of the Code. It is clear, 
therefore, that the making of an application for bail and his presence 
in Court cannot be regarded as appearance under section 497 of the 
Code. In fact, in Hidayat Khan's case (supra) it was pointed out by 
the learned Judges of the High Court that nowhere in law was there 
to be found any warrant for the plea that a Court possesses any 
power to take into custody a person offering himself for the purpose if 
there be no justification for the Court to exercise the power of taking 
such person into custody. When a person appears before the High 
Court merely to present an application for bail, without any warrant 
for his arrest having been issued, he is not appearing in respect of 
any offence of which the High Court is taking cognizance at the time 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
42
and his appearance before the Court cannot be regarded as a 
surrender to custody.” 
 
To us those observations apply with equal force to a case of a private 
complaint wherein a process has been issued against an accused 
person by a court under section 204, Cr.P.C. through summons 
requiring him only to appear before the court. In such a case the 
police is not looking for arrest of such person and what is the 
authority of the court to order that he may be taken into custody 
upon refusal to require him to execute a bond for his future 
appearance before the court under section 91, Cr.P.C. or upon 
dismissal of his application for pre-arrest bail is a question which 
abegs an answer which is nowhere to be found in the Code of 
Criminal Procedure. In the said Code arrest of a person is an incident 
of investigation by the police and in a case of a private complaint 
there is no investigation involved unless an investigation is ordered by 
the court concerned under section 202, Cr.P.C. which can be done 
before the issue of process under section 204, Cr.P.C. If an 
investigation under section 202, Cr.P.C. is ordered by the court seized 
of a private complaint and if during such investigation the police or 
the investigating person intends to arrest the suspect then such 
suspect apprehending a restraint on him can, obviously, apply before 
the court for pre-arrest bail under section 498, Cr.P.C. and if he is 
actually arrested then he can apply for post-arrest bail under sections 
496 or 497, Cr.P.C. It has already been observed above that if a 
person summoned under section 204, Cr.P.C. fails to submit a bond 
under section 91, Cr.P.C. to the satisfaction of the court or fails to 
provide the requisite sureties then he may be committed to custody 
but such custody would last for as long as he does not fulfill the said 
requirements and he is to be released from the custody the moment 
those requirements are fulfilled by him. Such custody would surely 
not be an arrest in connection with the offence in issue but such 
custody would only be in connection with compelling him to comply 
with the court’s requirements under section 91, Cr.P.C. It had not 
been appreciated in the cases of Noor Nabi and Luqman Ali that even 
in cases of the most heinous offences the police, not to speak of a 
court, is under no statutory obligation to necessarily and straightaway 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
43
arrest an accused person during an investigation as long as he is 
joining the investigation and is cooperating with the same. A reference 
in this respect may be made to sections 54 and 55, Cr.P.C., Article 
4(1)(j) of the Police Order, 2002, Rules 24.1, 24.4, 24.7, 25.2(1), 
25.2(2), 25.2(3) and particularly Rules 26.1, 26.2 and 26.9 of the 
Police Rules, 1934 and to the cases of Abdul Qayyum v. S.H.O., Police 
Station Shalimar, Lahore (1993 P.Cr.L.J. 91), Muhammad Shafi v. 
Muhammad Boota and another (PLD 1975 Lahore 729), Muhammad 
Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 
others (PLD 1992 Karachi 358), Mst. Razia Pervez and another v. The 
Senior Superintendent of Police, Multan and 5 others (1992 P.Cr.L.J. 
131) and Khizer Hayat and others v. Inspector-General of Police 
(Punjab), Lahore and others (PLD 2005 Lahore 470).  
 
28. 
There is yet another important legal aspect relevant to the issue 
at hand which had not been adverted to in the cases of Noor Nabi and 
Luqman Ali (supra) and that revolves around the provisions of section 
498-A, Cr.P.C. which stipulate as follows:    
 
498-A. No bail to be granted to a person not in custody, in Court 
or against whom no case is registered, etc.  Nothing in section 497 
or section 498 shall be deemed to require or authorize a Court to 
release on bail, or to direct to be admitted to bail, any person who is 
not in custody or is not present in Court or against whom no case 
stands registered for the time being and an order for the release of a 
person on bail, or a direction that a person be admitted to bail, shall 
be effective only in respect of the case that so stands registered 
against him and is specified in the order or direction. 
 
 
The provisions of section 498-A, Cr.P.C. tend to create an impression 
that the provisions of sections 497 and 498, Cr.P.C. may be relevant 
only to cases registered (presumably under section 154, Cr.P.C.) and 
it may be difficult for the purposes of section 498-A, Cr.P.C. to equate 
a private complaint, and that too only at the stage of issuance of 
process under section 204, Cr.P.C. through summons, with a case 
registered under section 154, Cr.P.C. If the impression so created is 
correct then the concept of bail may be alien particularly to such a 
stage of a private complaint and it may be a bond mentioned in 
section 91, Cr.P.C. which may be the only recourse possible in such a 
case. It may be true that the true scope of the provisions of section 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
44
498-A, Cr.P.C. is yet to attain judicial clarity in this specific regard 
but at the same time it is equally true that even this aspect of the 
matter had failed to receive any consideration at all in the cases of 
Noor Nabi and Luqman Ali. 
 
29. 
At this stage a clarification may be in order. In his capacity as a 
Judge of the Lahore High Court, Lahore and speaking for a Full 
Bench of that Court one of us (Asif Saeed Khan Khosa, J.) had 
observed in the case of Khizer Hayat and others v. Inspector-General of 
Police (Punjab), Lahore and others (PLD 2005 Lahore 470) as under: 
 
"The powers available during an investigation, enumerated in, Part V, 
Chapter XIV of the Code of Criminal Procedure, 1898 read with 
section 4(1)(1) of the same Code, include the powers to arrest an 
accused person and to effect recovery from his possession or at his 
instance. Such powers of the investigating officer or the investigating 
person recognize no distinction between an investigation in a State 
case and an investigation in a complaint case. In the case of Noor 
Nabi and 3 others v. The State 2005 P.Cr.L.J. 505 a learned Judge-
in-Chamber of the Honourable Sindh High Court has already clarified 
that section 91, Cr.P.C. deals only with procuring attendance of a 
person before the Court and after his availability before the Court the 
matter of his admission to bail or not rests in the hands of the Court 
and that the impression about automatic admission of an accused 
person to bail in a case of private complaint is erroneous." 
 
Those observations had been made in the year 2005 and the 
judgment in the case of Noor Nabi (supra) was the latest 
pronouncement on the subject at that time and, thus, the same was 
referred to in that judgment. The earlier unreported judgment of this 
Court in the case of Reham Dad (supra) handed down in the year 
1987 was not brought to the notice of the Court on that occasion and 
the later judgment of this Court in the case of Syed Muhammad 
Firdaus (supra) rendered in the year 2005 had not yet been published 
in any law report or journal of the country and had, thus, escaped 
notice. In this background one of us (Asif Saeed Khan Khosa, J.) feels 
no hesitation in acknowledging that he stands better informed and 
more enlightened on the subject at present than he was in the year 
2005. 
 
30. 
As a result of the discussion made above we hold that the law 
propounded by the Lahore High Court, Lahore in the case of Mazhar 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
45
Hussain Shah v. The State (1986 P.Cr.L.J. 2359) and by this Court in 
the cases of Reham Dad v. Syed Mazhar Hussain Shah & others 
(Criminal Appeal No. 56 of 1986 decided on 14.01.1987) and Syed 
Muhammad Firdaus and others v. The State (2005 SCMR 784) was a 
correct enunciation of the law vis-à-vis the provisions of sections 204 
and 91, Cr.P.C. and it is concluded with great respect and veneration 
that the law declared by the High Court of Sindh, Karachi in the case 
of Noor Nabi and 3 others v. The State (2005 P.Cr.L.J. 505) and by this 
Court in the case of Luqman Ali v. Hazaro and another (2010 SCMR 
611) in respect of the said legal provisions was not correct. As held in 
the cases of Mazhar Hussain Shah, Reham Dad and Syed Muhammad 
Firdaus (supra) the correct legal position is as follows: 
 
(i) 
A process is issued to an accused person under section 204, 
Cr.P.C. when the court taking cognizance of the offence is of the 
“opinion” that there is “sufficient ground” for “proceeding” against the 
accused person and an opinion of a court about availability of 
sufficient ground for proceeding against an accused person cannot be 
equated with appearance of “reasonable grounds” to the court for 
“believing” that he “has been guilty” of an offence within the 
contemplation of sub-section (1) of section 497, Cr.P.C. Due to these 
differences in the words used in section 204 and section 497, Cr.P.C. 
the intent of the legislature becomes apparent that the provisions of 
section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for 
different situations.   
 
(ii) 
If the court issuing process against an accused person decides 
to issue summons for appearance of the accused person before it 
then the intention of the court is not to put the accused person under 
any restraint at that stage and if the accused person appears before 
the court in response to the summons issued for his appearance then 
the court may require him to execute a bond, with or without 
sureties, so as to ensure his future appearance before the court as 
and when required. 
 
(iii) 
If in response to the summons issued for his appearance the 
accused person appears before the court but fails to submit the 
requisite bond for his future appearance to the satisfaction of the 
court or to provide the required sureties then the accused person 
may be committed by the court to custody till he submits the 
requisite bond or provides the required sureties. 
 
We may add that 
 
(iv) 
If the process issued by a court against an accused person 
under section 204, Cr.P.C. is through a warrant, bailable or non-
bailable, then the accused person may be under some kind or form of 
restraint and, therefore, he may apply for his pre-arrest bail if he so 
chooses which may or may not be granted by the court depending 
upon the circumstances of the case but even in such a case upon 
appearance of the accused person before the court he may, in the 
discretion of the court, be required by the court to execute a bond for 
Criminal Appeal No. 19 of 2012, 
Criminal Appeal No. 32-L of 2012, 
Criminal Appeal No. 82 of 2014, 
Criminal Petition No. 397 of 2013 & 
Criminal Petition No. 455 of 2013 
46
his future appearance, with or without sureties, obviating the 
requirement of bail.   
 
 
31. 
Having declared the correct legal position in respect of the 
provisions of sections 204 and 91, Cr.P.C. we direct the Office of this 
Court to fix the titled appeals and petitions for hearing before 
appropriate Benches of the Court for their decision on the basis of 
their respective merits in the light of the law declared through the 
present judgment. 
 
 
Judge 
 
Judge 
 
Judge 
 
Judge 
 
Judge 
 
Announced in open Court at Islamabad on: 03.10.2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Islamabad 
03.10.2014 
Approved for reporting.  
 
Arif 
  
 
 
 
 
 
 
 
 
 
  
  
 
 
