SHABBIR AHMAD Versus THE STATE

SHAMEEM HUSSAIN KADRI, Actg. C. J _-In a case registered under section 452/354, P. P. C. vide F. I. R. No. 209 dated 19th August, 1980, at Police Station Sadar, Khaapur, the petitioner moved an application for pre-arrest bail before the Additional Sessions Judge, Rahimyar Khan, which was dismissed on merits and on account of his absence from Court. In the impugned order it is mentioned that the earlier application for pre-arrest bail was dismissed for non-prosecution. It has also been pointed out that he did not join the police investigation. The order by the Add]. Sessions Judge was passed on 18th September, 1980

2. The petitioner then moved an application for pre-arrest bail in this Court. Ad interim bail was granted since the - allegation against the Additional Sessions Judge, supported by an affidavit, was that he threw away the medical certificate produced by learned counsel for the petitioner in Court. A report was called for, it 'was, also directed that the affidavit of counsel, who produced the medical certificate before the Court, shall also be filed.

3. Learned counsel for the petitioner, relying on Maulana Fateh Muhammad v. The State (P L D 1973 Lab. 874 ), submitted that it was not necessary for the accused to be present in Court on the date of confirmation of bail. The question, being of public importance, was referred to a larger Bench. During the arguments before the D. B. by learned counsel for the parties and the amicus curiae a further question arose ag to whether there is any distinction between the pre-arrest bail and bail after arrest. 1n order to examine the case-law and to avoid contradictory judgments by several Benches, a Full Bench was constituted to draw a distinction between bail before arrest and after arrest and to see if the presence of the accused on the date of confirmation of bail is a must. The law has undergone a change eversince the case of Hidayat Ullah Khan v. The Crown (P L D 1949 Lah. 21), both in legislation as well as by verdict of the superior Courts. In order to resolve this difficulty, we have examined the whole case-law.

4. Sections 496 to 502 of Chapter XXXIX of the Cr. P. C. deal with bail. "Bail" according to the Concise Oxford Dictionary means 'security for prisoner's appearance, on giving which he is released pending trial. Release on security given for appearance'. In Stroud's Judicial Dictionary Third Edition 'bail' has been. interpreted in the following words:

" `Baile' is when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that be is restrained of his liberty. And, being by law bailable, offereth surety. to those which have authority to baile him, which sureties are bound for him to the Kings use in a certaine summe of money, or body for body, that he shall appeare before the Justices of Goale-delivery at the next Sessions; &c. Then upon the bonds of these sureties, as is aforesaid, he is baile that is to say, set at liberty until the day appointed for his appearance

As to an accused person's right to bail and the Court's discretion to refuse it Mackintosh v. M'Glinchy (88 Sc. L R 470 ), is referred. Bail ought not to be granted where it is likely that the offence will be repeated, e.g. housebreaking. Reference is made to R. v. Phillips ((1947) W N 129). A Divisional Court will grant bail where there has been such delay in bringing a man to trial by court-martial as to amount to oppression as laid down in R. v. O/C Depot Battalion R. A. S. C., Colchester, Ex. p. Elliott ((1949) 1 All E R 373). According to Corpus Juris Secundum, Volume 8, bail in criminal proceedings is variously defined as the delivery of a person to his sureties on the giving of sufficient security for his appearance, the undertaking or security given by the surety for the due appearance of the prisoner, and the persons who become security for the appearance of accused in Court: Word `bail' in Black's Law Dictionary, Revised Fourth Edition, has been defined to mean as under:

"To procure the release of a person from legal custody, by under. taking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the Court.

To deliver the defendant to persons who in the manner prescribed by law, become security for his appearance in Court. To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called "bail", because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, 'that is, become bail for his due appearance when required), in order that he may be safely protected from prison, Wharton." Stafford v. State (10 Tex. App. 49 is cited).

"To procure release of one charged with an offence by insuring his future attendance in Court and compelling him to remain within jurisdiction of Court." (Reference is made to Manning v. State ex rel. Williams 190 Oki. 65, 120 P. 2d 980, 981).

Paragraph 165 of Halsbury's Laws of England, Fourth Edition deals with bail on committal. It reads: "In all cases except treason examining justices may admit a defendant to bail pending his trial at the Crown Court, that is, they may take from him a recognisance, with or without sureties, conditioned for his appearance at the time and place of trial. They may, instead of taking such recognisances, fix their amount with a view to their being taken subsequently and commit the defendant to custody meanwhile. A person charged with treason must not be admitted to bail except under an order of a Judge of the High Court or the Secretary of State. In general examining justices have a discretion to grant bail or to commit in custody; but, where a person who has attained the age of seventeen is charged with a summary offence and he or the prosecutor claims trial by jury, the examining justices must grant him bail if they commit him, unless he fails to a proper recognisance and to produce sufficient and satisfactory sureties if required to do so." Bail (in criminal proceedings) in Jowitt's Dictionary of English Law, Volume I at page 173 has been explained in the following words:

"An accused person is said at common law to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who, in default of so doing, are liable to forfeit such sum as is specified when bail is granted."

Section 496, Cr. P. C. deals with persons who are accused of bailable offences whereas section 497, Cr. P. C. relates to grant of bail in non-bailable offences. The latter section has undergone several legislative changes on account of different judicial interpretations. Its present form, as it stands today, provides certain principles for the grant of bail, namely, 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. The proviso to subsection (1) of section 497, Cr. P. C. gives discretion to the Court to grant bail to a person under the age of sixteen years or any woman or any sick or infirm person. Under second proviso it is mandatory for the Court to issue notice to the prosecution to show cause why the accused should not be released. The last proviso deals with the grant of bail in case the trial of the accused has occasioned delay. Subsection (2) confers power on the Court to grant bail during investigation, inquiry or trial when it is of the opinion that sufficient grounds for further enquiry into h-s guilt exist. Subsection (3) lays down that the Court shall record in writing his reasons for so doing.

5. Section 498, Cr. P. C. deals with two situations (i) the fixation of the amount of bond according to 'the circumstances of the case which has not to be excessive and (ii) conferment of power on the High Court or Court of Session to grant bail to a person whether there be an appeal on conviction or not. Section 498-A, Cr. P. C. was added by Code of Criminal Procedure (Amendment) Act (XIII of 1976) which places curbs on the power of the Court to grant bail under sections 497 and 498, Cr. P. C. to a person who is not in custody or is not present in Court or against whom no case stands registered for the time being. The order of bail shall be effective only in respect of the case that stands registered and is specified in the order or direction of the Court. Section 499, Cr. P. C. deals with bail bonds. It reads like this:

"Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the Police Officer or Court, as the case may be.

If, the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge."

6. Section 500, Cr. P. C. deals with discharge from custody. If through mistake, fraud or otherwise insufficient sureties have been accepted or if they afterwards become insufficient, the Court may under section 501, Cr. P. C. 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. Section 502 deals with discharge of sureties.

7. Dealing with the question of presence of the accused at the time of confirmation of his bail it is pertinent to mention that 'interim bail has not been mentioned in any of the sections referred to above. On the other hand Order XXXIX,, rule 1, C. P. C. deals with temporary injunction which can be co-equated with ad interim injunction. In Stroud's Judicial Dictionary, Third Edition 'interim' has been defined `for the time being'. Algar v. Middlesex County Council ((1945)2 All ER243) refers. At page 1454 of this book it is mentioned that 'injunction' is either interlocutory or interim, i.e. an order until the hearing of the action or further order or perpetual, i.e. a judgment determining and concluding the right in litigation; it is also restraining i.e. when it inhibits the doing of anything.

8. In the matter of bail 'ad interim' bail is a misnomer and has fallen in practice. In fact the Court grants pre-arrest bail to a person who appears and surrenders to the jurisdiction of the Court which prohibits the arrest of the accused until it hears the prosecutor, goes into the nature of the charge against him and passes a final order granting or refusing the bail A after considering the merits and demerits. The accused becomes custodia legis and during the interregnum the arrest of the petitioner is prohibited on the accused furnishing sureties to the satisfaction of the Court, who have to produce him on the day when the final order of bail is to be passed. Section 497, Cr. P. C. lays down certain guidelines for the grant of bail. Under section 498, Cr. P. C., however, the High Court and the Court of Session have unrestricted power to grant bail to any person in any case. The restrictions have, however, been placed on the exercise of jurisdiction by the Courts by the addition of section 498-A, Cr. P. C. which have already been discussed above.

9. The criteria for pre-arrest bail under section 498, Cr. P. C. was considered and the following three principles were laid down by a Full Bench in Hidayat Ullah Khan's case, namely, not only good prima facie ground should be made out but also that arrest would be for ulterior motives or that it would cause irreparable harm to his reputation. This power has to be sparingly exercised. In Crown v. Khashi Muhammad (PLD 1953FC170), the Federal Court of Pakistan interpreted section 498, Cr. P. C. and held that bail is not possible unless applicant is in custody or under some form of restraint. It was also held if section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this se2tion 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, Cr. P. C. In Sadiq Ali v. The State (PLD1966SC589), head note (c) is to the following effect:

"Sessions Court has power to make direction for grant 'of bail to a person whose arrest by police 'without warrant' is 'imminent and certain' and where circumstances justify such grant "Appear" in Ss. 496 & 497 includes 'voluntary' appearance Indiscriminate". grant of such bail not approved-Sessions Judge granting interim bail before--arrest, but subsequently cancelling same--Order of cancellation does not entail that person applying for bail has to be "ordered" to be given into police custody" without there being a request in that behalf by police itself "-Applicant . to be left to be dealt with as Police thought fit in such cases-Order consigning applicant to Police custody in absence of such request "unwarranted" and "without jurisdiction"-Applicant ordered by Sessions Judge to be remanded to Police custody and for that purpose directing Court's Orderly to "take charge" of him-Escape of applicant from such 'charge' not escape from 'lawful custody'-Proceedings under S. 224, Penal Code (XLV of 1860) on basis of such escape not sustainable-Estoppel-Principle akin to, cannot be pressed into service in a case where applicant voluntarily appeared before Court."

At page 590 it is observed as under:

"The word 'appears', occurring in sections 496 and 497 of the Code need not be necessarily confined to cases, where a person has been summoned to appear in Court. A person against whom accusation has been laid, either in Court or before the Police, might anticipate the issue of a process against him and "appear" voluntarily in Court. He would thus be placing himself in custodia legis, to be dealt with in accordance with law.

.

,The rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person, whose arrest, on a criminal charge by the Police, without a warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of nail. Such an interpretation is consistent with the language of sections 496 and 497 of the Code and involves no widening of the scope of the power given by section 498 as compared with its extent under the former sections. Indeed, such an order might be eminently called for, in certain circumstances of grave character, affecting the liberty of a citizen. Indiscriminate grant of bail, however, merely on the request of a person, who appears in Court, and thereby surrenders himself to that Court, without the other conditions for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced."

S. A. Rahman, J. on page 600 has opined:

"As a result of the above discussion, I have reached the conclusion that the rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person, whose arrest, on a criminal charge by the Police, without a warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of bail. Such an interpretation, in my humble Judgment, is consistent with the language of sections 496 and 497 of the Code and involves no widening of the scope of the power given by section 498 as compared with its extent under the former sections. Indeed, such an order might be eminently called for, in certain circumstances of grave character, affecting the liberty of a citizen."

The difference of opinion, however, arose in Muhammad Ayub v. Muhammad Yaqub and another P L D 1966 S C 1003 the majority verdict being that section 498, Cr. P. C. is not .to be construed to Extend the power of the High Court or a Court of Session to grant bail in cases where these Courts would not be competent to grant bail under section 497 of the Code. Per Hamoodur Rehman, J. taking into account the context in which section 498 appears and the wide words deliberately used in it in respect of the power of granting bail it seems that it is in the nature of a residuary and supplementary provision giving to superior Criminal Courts, namely, the High Court and the Court of Session, a wider power to grant bail, in appropriate cases, to persons to whom bail cannot be granted under sections 496 and 497.

Muhammad Yaqub Ali, J., however, created little distinction in the following words;

"There is no warrant to import into section 498 the ingredients of section 497. Sections 496 and 497 speak of bail and bonds. The first part of section 498 emphasises that Courts and Police Officers shall fix their amount with due regard to the circumstances of the case and shall not be excessive and the concluding part empowers the High Court or the Court of Session to reduce the bail required by a Police Officer or Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and 497. The remaining part of the section which confers on the High Court or the Court of Session the power to admit any person to bail in any case and whether there be an appeal on conviction or not is, however. an independent provision."

The Court examined a large number of cases including Jairam Das and others v. King-Emperor (72 1 A 121 ), Crown v. Khushi Muhammad (P L D 1953 F C 170), Gushtasab Khan v. Crown (P L D 1956 F C 117) and Khalid Saigol v. The State (P L D 1962 S C 495). Jairam Des and Khalid Saigol's cases are entirely different in nature, for, both deal with suspension of sentence after conviction and the appropriate provision in the Criminal Procedure Code is section 426. It was held in Lala Jairam Das and others v. Emperor (A I R 1946 P C 94), that a High Court in India has no power to grant bail under section 561-A, Cr. P. C. It has particularly differentiated between section 426 and the provisions of the chapter dealing with bail during trial, namely, sections 496 to 502, Cr. P. C. The obvious distinction drawn does not intermingle with two different provisions of the Cr. P. C., namely, bail during trial and bail after conviction. In Khalid Saigol's case it was held that section 427 is an independent section not controlled by sections 497 and 498, Cr. P. C. Considerations in grant or refusal of bail relate to the possibility of absconding; tampering with evidence. Heinousness of crime is not by itself a ground for refusing tail. Where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any a priori. assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which the facts are alike.

10. Summing up this question it seems to me quite simple that section 498, Cr. P. C. is neither ancillary nor subsidiary to sections 4 and 497 but is an independent section which confers uncontrolled power on the High Court and the Court of Session to grant bail in any case to a person. . The conditions laid down in section 497, Cr. P. C. can be merely guidelines for the grant of bail. However, the Legislature in its wisdom feeling certain difficulties, have brought in section 498-A, Cr. P. C. which has now placed fetters on the exercise of jurisdiction under section 498 on the superior Courts as well as the Sessions Court. These restriction can only be applicable to persons who are not in custody or not present in Court or against whom no case stands registered at the time when the bail is prayed for. The order of the Court for the grant of bail shall be effective only to the extent of the case which stands registered against him. I would like to explain here the word `custody'. It should not be construed as physical custody. If a person is in restraint or he apprehends arrest in a case which is cognizable obviously his custody is intended by the Police Officer who can arrest him without warrant. I am fortified in this view by the dictum of the Supreme Court in Khushi Muhammad's case. There is, therefore, obviously distinction between pre-arrest bail and bail after arrest.

The criteria laid down in Ridayat Ullah Khan's case has not undergo any change so far. The three principles laid down therein have to be strictly followed. This power should sparingly be exercised in appropriate cases. The Courts should strictly avoid the exercise of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case has to be dealt with on its own merits. Every murderer, burglar, dacoit or a person accused of offences disturbing the tranquillity of the State and destroying the peaceful living of .citizens should not automatically get pre-arrest bail on mere asking. The Court should seriously apply it mind before passing the order of pre-arrest bail. I must, however, make it clear that Courts are the guardians of liberty of citizens. The abuse of power by the Police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view. The golden principles in Hidayat Ullah Khan's case must strictly be followed.

11. I will now deal with the question which arose first, namely, the presence of the accused at the time of confirmation of bail. Section 499, Cr. P. C. provides the release of a person on his own bond, a bond for such sum of money as the Police Officer or Court thinks sufficient. When he is released on bail one or more sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the Police Officer or Court. Form of bond is provided in Schedule V. A cursory glance of the bond shows that the accused undertakes to appear to answer the charge on the day and will continue so to attend until otherwise directed by the Court. In case of default the bond is forfeited. Similarly the surety makes such an undertaking that the accused shall attend and shall continue so attending the Court until the Court directs otherwise and the bond is forfeited in case of default of the accused.

12. Maulana Fateh Muhammad v. The State was cited in support of the proposition that the presence of the petitioner is necessary only on the first date of hearing. It was not obligatory on the part of the petitioner to be present in Court unless the Court so directed. If a petition is once admitted and notice is given it has to be decided on merits. This case has lost its sanctity on account of insertion of section 498-A, Cr. P. C. by virtue of Code of Criminal Procedure (Amendment) Act XIII of 1976. The presence of the accused for the grant of bail is mandatory in Court by virtue of this provision. As I have already discussed above there is no concept of ad interim bail in the Code except that for the first time this form has been introduced in Sadiq Ali's case. In my humble view the Court passes a prohibitory order in the nature of injunction directing the prosecution agency not to arrest the person until the allegation against the accused is examined by the Court. During this interregnum, no doubt, the accused has to furnish bond for his appearance on the date on which the order of release on bail has to be passed after considering the allegations made against a person. The argument that the presence of the accused on the day when he surrenders himself before the Court for the grant of interim order is enough, is devoid of any force, for, this arrangement was only effective till the relevant order is passed by the Court allowing the accused bail or withdrawing the order of prohibition of arrest of the accused.

In Abdul Hamid Khan Jatoi v. The State (1973 P Cr. L J 1032), the Court granted interim bail to the petitioner in his absence without his surrender because the Police made it impossible for him to enter Court premises, which was heavily guarded. Again this decision is before the addition of section 498-A, Cr. P. C. In Subedar Abdul Rehman and another v. The State (1981 P ( r. L J 61), Zakiuddin Pal, J. as he then was, held that there was no justification in insisting for appearance on date of confirmation of bail and the matter bad to be decided on merits. The learned Judge lost sight of the provision of section 498-A, Cr. P. C. while passing this order.

In Umra Khan and another v. The State (P L D 1980 Pesh. 145), after taking into consideration section 498 .A, Cr. P. C. the learned Judge observed that the introduction of this section has, however, changed the position and has left no discretion with the Court to admit the person to bail unless he is in custody or is present in Court.

13. I am inclined to hold that the presence of the accused as mentioned in section 498-A, Cr. P. C. further strengthens the undertaking which the accused and his sureties give to the Court by furnishing bonds under section 499. It seems to be obligatory for the accused to appear in Court on all subsequent dates after prohibitory order of his arrest was passed by the Court on surrender of his person, for. he becomes custodia legis. This has also been observed by S. A. Rahman, J. in Sadiq Ali's case It is, however, discretionary for the Court to give him a direction not to appear if the Court so chooses. I am also conscious of the fact that the practice, which is brought to the notice of the Bench, is that in certain cases the Sessions Judges lock the doors and get the accused arrested when they come to the conclusion that the accused is not entitled to bail after examining the allegations made by the prosecution. Courts are sanctuaries and the reverence must be shown. It is undesirable that the Police arrests the accused in Court. In Suleman Khan and another v. The State (1975 S .C M R 131), the August Supreme Court set aside the order of direction given by the High Court to take the accused in custody on refusal of confirmation of anticipatory bail. The distinguishing feature of this case was that there was no coercive process issued against accused in the complaint case by the Magistrate of Gujranwala and the custody of the accused was not required by the Police in connection with the F. I. R. registered under section 302/34, P. P. C. at another Police Station Kamoke. It would thus appear that the Police of its own should not arrest in Court any accused person but the Court can give such a direction, if a request is made by the Police in this behalf. The absence of the accused for a genuine cause has to be taken into consideration by the Court and it should not take hasty steps without affording a reasonable opportunity of showing cause for his absence.

14. In conclusion, therefore, I am of the, view that there are different principles for pre-arrest and after arrest bail and the presence of the accused is necessary unless it is dispensed with by the Court. The case shall now go to the Single Bench for decision an the light of the ab6ve dictum. Before parting with the case I feel obliged to pay compliments to Mr. M. B. Zaman, who ably assisted this Court with his persuasive arguments and production of relevant case-law. ..

Mr. Ahmad Saeed Kirmani another amicus curiae also made hectic efforts in pressing his view-point that the presence of the accused on the subsequent dates is not necessary. His performance was also impressive.

Mr. S. A. Saeed another amicus curiae appeared only once and made his submissions. Learned Advocate-General also ably assisted the Court with his submission and the citation of necessary case-lacy.

M. S. H. QURESHI J.--I agree.

M. MEHBOOB AHMAD, J.--I concur. "

Order accordingly.