ORDER SHEET LAHORE HIGH COURT, LAHORE Judicial ...

ORDER SHEET
LAHORE HIGH COURT, LAHORE
Judicial department
W.P.No.25157-2011.
Ghulam Qadir VERSUS Additional Sessions Judge,
etc.
Appeal/revision against the decree or order (as the case may be) of
Serial No. of
order or
proceedings
Date of order
or
proceedings
Order with signature of Judge, and that of
parties or counsel, where necessary.
21.2.2012. Ch.Khadim Hussain, Advocate for the petitioner.
Rana Shamshad Khan, AAG with Muhammad Akram
ASI.
Ghulam Qadir petitioner has invoked the
constitutional jurisdiction of this Court under Article
199 to impugn the validity of the order dated
24.6.2009 passed by learned Magistrate Section 30
Phalia district Mandi Baha ud Din whereby after
recording the confessional statement of
accused/respondents No.4 to 15 they were released on
probation for a period of one year subject to furnishing
of surety bond. He has also assailed the order dated
17.8.2011 passed by learned Additional Sessions
Judge Phalia district Mandi Baha ud Din whereby his
revision against the order dated 24.6.2009 was
dismissed.
2. Brief facts leading to this petition are that
petitioner lodged an FIR No.337/2004, dated
30.8.2004, under section 436/148/149 PPC at police
station Pahrianwali district Mandi Baha ud Din against
the respondents alleging that they in furtherance of
their common intention armed with lethal weapons in

W.P.No.25157-2011
between the night 29/30.8.2004 set on fire the roof,
and door of the room owned and possessed by the
complainant. They were held guilty in the police
investigation and challaned under Section 173 Cr.P.C.
After submission of the challan they were formally
charge sheeted by the learned trial Court under section
438/148/149 PPC on 27.1.2005 to which they pleaded
not guilty and claimed to be tried. However, during the
course of trial all the accused confessed their guilt.
Learned trial court recorded their confession in the
prescribed manner and thereafter passed the impugned
order, which reads below:-
“The above confessional statement of the accused has
been recorded. They were given notice that why on the
basis said statements, they may not be convicted.
Accused in reply to the notice have collectively stated
that they have confessed their guilt and requested for
lenient view.
2. In view of the frank confessional statement
recorded. By the accused the case against the accused
is proved. They are first offender. Keeping in view the
age and responsibility of the accused. The accused are
released on Probation for the period of one year.
3. The accused are released on Probation, subject
to execution surety bonds in the sum of Rs.50,000/-
with one surety each in the like amount to the
satisfaction of the probation officer for their good
behaviour. They shall regularly attend the office of the
probation officer as per allocated schedule. File be
consigned to record room after necessary completion.”
Being aggrieved petitioner assailed the said
order through revision lodged on 20.10.2010 after
expiry of one year and three months, which was also
dismissed by the learned Additional Sessions Judge
Phalia on the ground that the same is barred by
limitation taking reliance upon Nur Ali and others
Vs. The State (PLD 1961 Dacca 239) as well as
keeping in view the fact that accused faced agony of
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W.P.No.25157-2011
trial before the trial Court for long seven years and
also have completed their probation period
successfully, therefore, circumstances did not permit to
interfere in the order of learned trial Court at belated
stage.
3. It is argued by learned counsel for the petitioner
that the petitioner was in physical possession of the
disputed land owned by his minor sons; that he was
illegally dispossessed by respondents No.2 to 7 and
that the police report comprising wrong facts due to
political pressure without proper investigation cannot
be made basis for dismissal of the complaint; that the
impugned order of dismissal of the complaint is
against law and facts, arbitrary, perverse, untenable in
the eye of law and liable to set aside.
4. I have given patient hearing to learned counsel
for the petitioner, learned AAG and gone through the
record.
5. At the outset it will be expedient to reproduce
hereunder the provision of Section 5 of the Probation
of Offenders ordinance, 1960 for ready reference,
which reads below:-
5. Power of Court to make a probation order in certain
cases--- (1) where a Court by which--
(a) any male person is convicted of an offence not
being an offence under Chapter VI or Chapter VII of
the Pakistan Penal code or under Sections 216A, 328,
382, 386, 387, 388, 392, 393, 397, 398, 399, 401, 402,
455 or 458 of that Code, or an offence punishable with
death or imprisonment for life, or
(b) any female person is convicted of any offence other
than an offence punishable with death,
Is of opinion that, having regard to the circumstances
including the nature of the offence and the character
of the offender, it is expedient to do so, the Court may
for reasons to be recorded in writing, instead of
sentencing the person at once make a probation order,
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W.P.No.25157-2011
that is to say, an order requiring him or her to be
under the supervision of a probation officer for such
period, not being less than one year or more than three
years, as may be specific in the order.
Provided that the court shall not pass a
probation order unless the offender enters into a bond,
with or without sureties, or commit no offence and to
keep the peace and be of good behaviour during the
period of the bond and to appear and receive sentence
if called upon to do so during that period.
Provided further that the Court shall not pass a
probation order under this section unless it is satisfied
that the offender or one of his sureties, if any, has
fixed place of abode or a regular occupation within the
local limits of its jurisdiction and is likely to continue
in such place of abode or such occupation, during the
period of the bond.
(2) While making a probation order, the court may
also direct that the bond shall contain such conditions
as in opinion of the Court may be necessary for
securing supervision of the offender by the probation
officer and also such additional conditions with respect
to residence, environment, abstention from intoxicants
and any other matter which the Court may, having
regard to the particular circumstances of the case,
consider necessary for preventing a repetition of the
same offence or a commission of other offences by the
offender and for rehabilitating him as an honest,
industrious and law-abiding citizen.
6. Careful appraisal of the record transpires that
offence under Section 438 PPC does not fall within the
exception provided under section 5(1)(a) of the
Ordinance ibid, therefore, learned trial Court was
authorized to pass the impugned order of releasing the
accused on probation. Impugned order also maintains
the vital ingredients in accordance with the law. I do
not find any legal infirmity in the impugned order
passed by the learned trial Court. Simultaneously, the
revision is also lawfully dismissed by the learned
Additional Sessions Judge keeping in view the fact
that the same is lodged after about 15 months of
passing of impugned order as well as after expiry of
probation period successfully completed by the
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Ejaz
W.P.No.25157-2011
accused who have been facing agony of the trial for
long seven years in the offence under Section 438 PPC
punishment whereof is imprisonment for life or
imprisonment of either description for ten years and
fine. Needless to mention that the word ‘or’ used
before the imprisonment for either description for ten
years is to be interpreted in the benefit of the accused
to exclude the offence under Section 438 PPC from the
exception envisaged under Section 5(1)(a) of the
Probation of Offenders Ordinance, 1960. In the instant
case accused have been facing agony of lengthy
process of trial for long seven years besides one year
period of probation, therefore, petitioner has no case to
invoke the constitutional jurisdiction of this Court to
interfere with the impugned orders lawfully passed by
the learned Courts below. This petition having no
merit is, therefore, dismissed.
Approved for reporting.
JUDGE
(Abdus Sattar Asghar)
JUDGE
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