PLJ 2022 Cr.C. 511
[Lahore High Court, Lahore]
Present: Sohail
Nasir, J.
MUMTAZ alias BHUTTO--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 30606 of 2021, heard on 21.5.2021.
Criminal Procedure Code, 1898 (V
of 1898)--
----Ss. 498/498-A--Pakistan Penal Code, (XLV of 1860), S. 337-F(i)/354--Pre-arrest bail in bailable
offence--Confirmation of--Accused had applied for his pre-arrest bail in
bailable offence under Sections 337-F(i)/354, PPC--Sections 496, 497 and 498 of
the Code although are inter-connected but reading of the same constructs
certain distinctions--Powers under this provision can be exercised by a Court
only for a person other than a person accused of a non bailable offence--In
bailable cases while remanding the accused to jail on his failure to furnish
surety bail bonds, the trial Court shall consider the propriety of his release
on execution of personal bond--Judges are supposed to make reasoned decisions
based on the facts and the law rather than on the basis of sympathy or empathy
for litigants--Interim pre-arrest bail already granted to petitioner is
confirmed. [Pp. 512, 514, 515, 516, 518
& 519] A, B, C, D, E & F
PLD 2014 SC 760; 2020 PCrLJ (Note) 4; PLD 1963 SC 478;
PLD 1995 SC 34; PLD 1997 SC 545; 2001 PCrLJ 1082; AIR 1958 SC 376; AIR 1958 Bom.
1226 ref.
Mian Mushtaq Ahmad Anjum, Advocate for Petitioner.
Ms. Rahila Shahid, DDPP for
State.
Complainant in person.
Date of hearing: on 21.5.2021.
Judgment
Denial of statutory right to a
litigant by the Courts is called injustice. When such refusal relates to
liberty of a person having right of bail in bailable offences, it is called
gross injustice that means to treat someone in an unfair way. The honorable
Supreme Court of Pakistan[1]
taking into consideration legitimate rights of a person was pleased to hold
that:
"
serious issue as to whether the petitioners, who are citizens of this country
entitled to enjoy the protection of normal constitutional and legal rights,
have been denied such rights on the basis of grounds which are reasonable or
not (underlined by me).
2.
This Court is confronted with similar situation. Mumtaz alias Bhutto
(Petitioner) being accused of case FIR No. 181 recorded on 01.04.2021 at Police
Station Safdarabad Sheikhupura had applied for his pre-arrest bail in bailable
offences under Sections 337-F(i)/354, P.P.C. Allegations against him are that
on 01.04.2021 at about 07:30 am when complainant Kubra Bibi asked for her
money, he being armed with pistol dragged her in the street and her clothes
were
torn.
3. Vide an order dated 23.04.2021 passed by learned
Additional Sessions Judge, Sheikhupura said petition was dismissed and
operative paragraph is as under:
"From the bare
perusal of FIR this fact becomes crystal clear that accused is very well
nominated in the FIR with specific role of physical assaulting the present
petitioner. The MLC is also on record which supports the version of the
complainant. During police investigation also the accused has been found to be
connected with the commission of offence. The recovery of pistol is yet to be
effected from him. The grounds of pre-arrest bail are entirely different from
post arrest bail. The petitioner has miserably failed to bring on record any
mala fide or ill will either on behalf of the complainant or the police
regarding promptly lodged FIR. In this view of the matter, the petition in hand
is hereby dismissed. Ahlmad of this court is directed to consign the file
record room after its due completion."
4. Good luck prevailed that petitioner was not apprehended by
the police, so he approached this Court through this application for seeking
protection of his liberty by asking for pre-arrest bail.
Heard.
5. No doubt that the requirements for pre-arrest bail are
different from those relevant to bail after arrest but it appears that learned
Additional Sessions Judge was not cognizant of the fact that this question
comes into field only when offence is non-bailable, because in bailable offence
no discretion lies with the Court to refuse the concession of bail may it be
pre arrest or after arrest.[2]
6. Under the Code of Criminal Procedure 1898 (Act V of 1898)
(Code} for the purpose of bail the offences are divided into two categories
termed as "Bailable offence" and "Non-bailable offence".
These are defined under Section 4(b) as under: -
(b) "Bail
able offence, "non-bail able offence": "Bailable offence"
means an offence shown as bail able in the Second Schedule or which is made
bail able by any other law for the time being in force; and "non-bail able
offence means any other offence."
7. Above division of making the offences bailable or
non-bailable was not something new in the Code. In
8. In
9.
It is not disputed that in the case in hand offences levelled in FIR are
bailable. Sections 496, 497 and 498 of the Code although are inter-connected
but reading of the same constructs certain distinctions. These provisions for
better understanding are reproduced and as under:
"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 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:
Provided, further that nothing in
this section shall be deemed to affect the provisions of Section 107, subsection
(4), or Section 117, subsection (3).
497. When bail
may be taken in case of non-bail able 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:
--------------------
--------------------
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."
10.
Plain reading of Section 496 of the Code makes it clear that powers under this
provision can be exercised by a Court only for a person other than a person
accused of a non bailable offence. Whereas perusal of Section 497 also leaves
no ambiguity that these powers are to be exercised in case of non-bailable
offence. However, powers under Section 498 are beyond any such restrictions of
bailable or non bailable offence as it says that "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. Words "in
any case" used in this provision makes no difficulty to understand
that a person irrespective of the fact that he is the accused of a bailable or
non bailable offence can be admitted to pre-arrest bail.
11. When read all Sections (496, 497
and 498) together there remains no uncertainty that while deciding an
application, may it be for bail after arrest or pre-arrest, in bailable offence
the Court is left with no discretion to refuse the concession to an accused as
in such eventuality the grant of bail is a right and not favour, whereas in
non-bailable offence the grant of bail is not a right but concession/grace.
12. In Mian Mahmud Ali Qasuri and
others v. The State[4]
the apex Court was pleased to hold as under:
"The policy of
the Code seems to be that in the case of bailable offences the person accused
has the indefeasible right to grant of bail subject of course to satisfactory
sureties being offered, if sureties are considered necessary. There is admittedly
no provision in the Code permitting cancellation of such a bail. Bail is not a
mere privilege in such cases but a right of the subject whose liberty is
regarded as a precious asset to be preserved undiminished."
13. In its landmark judgment Tariq Bashir v. The State[5]
again it was held by the honorable Supreme Court of Pakistan that:
"It is crystal
clear that in bailable offences the grant of bail is a right and not favour,
whereas in non-bailable offences the grant of bail is not a right but
concession/grace."
The
Courts were also directed that in bailable cases while remanding the accused to
jail on his failure to furnish surety bail bonds, the trial Court shall
consider the propriety of his release on execution of personal bond.
14. Entertaining such question again the honorable Supreme
Court of Pakistan in case Imtiaz Ahmad and another v. The State[6]
was pleased to declare that "a person accused of a bailable offence, is
entitled as of right to be released on bail and grant of bail in such cases by
the Court is not an act of grace or concession".
15. Finally in identical situation when pre-arrest bail of some
accused in bailable offences was refused by an Additional Sessions Judge, the
matter came up for hearing before this Court in case titled Allah Bachaya
and 3 others v. The State.[7]
It was held that the Court is left with no option but to admit the accused to
pre-arrest bail as bail is claimed in a bailable offence as a matter of right
and not by way of grace or concession.
16. Although not written in the order but an impression can be
gathered that learned Additional Sessions Judge was under emotions that as
modesty of a female was outraged, so petitioner was not entitled for
extraordinary relief of bail. This Court finds that same position was there before
the apex Court.[8]
Alam Zeb and Shakeel Khan were refused bail by the honorable Islamabad High
Court,
"The last
consideration weighing with the learned Judge in Chamber of the Islamabad High
Court, Islamabad has been found by us to be offensive to the settled criminal
jurisprudence of this country because it has so far been understood without any
ambiguity that in a case involving a bailable offence bail is to be granted to
an accused person as of right but in the case in hand the learned Judge in
Chamber had observed that although the offences allegedly committed by the
petitioners are bailable yet on account of such offences being heinous in
nature and fatal for the society at large his lordship had not felt inclined or
persuaded to admit the petitioners to bail. To start with, the learned
Judge-in-Chamber was plainly incorrect in observing that the offences allegedly
committed by the petitioners are bailable offences 'because the legal position
is otherwise as far as many offences invoked in this case are concerned.
Secondly, if for the sake of an argument the offences involved were bailable
then the learned Judge-inChamber could not have termed them as heinous and
fatal for the society because the legislature had not treated them as such by
declaring them as bailable offences. And, thirdly, even if such heinous
offences which, in the opinion of the learned Judge-in-Chamber, were fatal for
the society at large were made bailable by the legislature then the learned
Judge-in-Chamber was left with no discretion to refuse bail to the petitioners
in a case involving such offences. We, therefore, note, and with grave concern,
that in this respect the learned Judge-in-Chamber had not only misread the law
but had also misapplied the same."
17. A Judge in all circumstances is under obligation to decide
a case in accordance with law. The phrase "in accordance with law"
means that a person will comply with the terms of the law or will abide by or
obey the law.[9]
The law is not to be violated by the King (Lex Non a Rege Est Violanda)
is an old maxim, and equally applicable to the modern state. It is illustrated
as:
"King when
deciding any case should not violate the law himself also. The law is equal for
and it is same for every person. It is not discriminated on the basis of any
post or position, it is same for every person whether he be king or not."
18. A Judge is to follow the laws of the land and principles
settled by the superior Courts. The Courts have only to go behind the principle
"Let justice be done though the heavens may fall". Emotion is a fundamental
aspect of human existence. In normal healthy people, feelings about options
exert a powerful influence on choice. Intuition and anecdote suggest that
people react more positively toward others whom they like or for whom they feel
sympathy than toward others whom they dislike or for whom they feel disgust.
Unlike Judges are expected to put their emotional reactions to litigants aside.
United States Circuit Judge Jerome Frank[10]
asserted that "Mr. Prejudice and Miss. Sympathy are the names of witnesses
whose testimony is never recorded, but must nevertheless be reckoned with in
trials by jury. Judges are supposed to make reasoned decisions based on the
facts and the law rather than on the basis of sympathy or empathy for
litigants.[11]
Emotion, sympathy, empathy and kindness are aliens during the dispensation of
justice. This principle signifies the belief that justice must be realized
regardless of consequences.
19.
There is another aspect of the matter that the right of bail in bailable
offence is so absolute that it cannot be recalled. In Mian Mahmud Ali
Qasuri's case (ibid) it was argued on behalf of the State while relying on
a Division Bench judgment of the Bombay High Court[12]
that bail granted to an accused charged with a bailable offence under Section
496 of the Code, can be cancelled on the ground that the accused was
intimidating witnesses, in exercise of the inherent powers of the Court
preserved under Section 561-A of the Code and said view was also upheld by the
Supreme Court of India[13]
on appeal. The honourable Supreme Court of Pakistan declared it as an erroneous
view by observing that:
"With the
utmost respect, it seems to us, that this is an erroneous view in the face of
the unqualified language used in Section 496 of the Code. The policy of the
Code seems to be that in the case of bailable offences the person accused has
the indefeasible right to grant of bail subject of course to satisfactory
sureties being offered, if sureties are considered necessary. There is
admittedly no provision in the Code permitting cancellation of such a bail.
Bail is not a mere privilege in such cases but a right of the subject whose
liberty is regarded as a precious asset to be preserved undiminished. If of
course the person enlarged on bail suborns witnesses there may be other
remedies at law open against him, e.g. contempt proceedings or conceivably even
proceedings to bind him over to keep the peace or be of good behaviour in
certain circumstances. But to hold that on such grounds the bail granted under Section
496 of the Code can be cancelled, amounts to saying that the High Court
possesses inherent power to override the
express provisions
of the Code Such a conclusion would be contrary to principle and finds no
support from any other authority".
20. The ultimate conclusion of the discussion made above is
that:
i. In case of
bailable offence the accused has indefeasible right of bail.
ii. Bail is not a
mere privilege in such cases but a right of the subject whose liberty is
regarded as a precious asset to be preserved undiminished.
iii. In bailable
offence the grant of bail is a right and not favour, whereas in non-bailable
offence the grant of bail is not a right but concession/grace.
iv. The Court is
left with no option but to admit the accused to bail in a bailable offence.
21.
Resultantly, interim pre-arrest bail already granted to petitioner is confirmed
subject to his furnishing fresh bail bonds in sum of Rs. 50000/- (fifty
thousands) with one surety for the satisfaction of learned Area/Duty Magistrate
within fifteen days.
22. Office is directed to send a copy of this order to learned
Additional Sessions Judge Sheikhupura for her guidance in future.
(K.Q.B.) Bail confirmed
[1]. Alam Zeb and another vs. The State and
others PLD 2014 SC 760.
[2]. Mst. Zeenat Begum vs. Sadaqat
Sagheer and another 2020 PCr.LJ Note 4.
[3]. https://www.pbus.com/page/14.
[4]. PLD 1963 SC 478.
[5]. PLD 1995 SC 34.
[6]. PLD 1997 SC 545.
[7]. 2001 PCr.LJ 1082.
[8]. Alam Zeb and another vs. The State and
others PLD 2014 SC 760.
[9]. https://incorporated.zone/in-accordance-with/#In_accordance_with_the_law.
[10]. Jerome New Frank (September 10, 1889-January
13, 1957) was an American legal philosopher and author who played a leading
role in the legal realism.
[11]. http://texaslawreview.org/wp-content/uploads/2015/08/Ranchlinski-93-4.pdf.
[12]. Madhukar Purshottam Nondkar v. Talab Haji
Hussain AIR 1958 Bom. 1226.
[13]. AIR 1958 SC 376.