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P L D 1995 Supreme Court 34

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P L D 1995 Supreme Court 34

Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ

TARIQ BASHIR and 5 others---Petitioners

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August, 1994.

(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994 passed in Criminal
Bail No.265/1994 (Kar.) 117/1994 (Hyd.)).

(a) Criminal Procedure Code (V of 1898)---

----Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-bailable
offences the grant of bail is not a right but concession/grace-- Grant of bail in offences
punishable with imprisonment for less than ltl years is a rule and refusal an exception---
Exceptional and extraordinary cases whore bail is declined in Cases of offences punishable with
imprisonment of loss than ten years enumerated.

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. Section 497, Cr.P.C. divided non-bailable
offences into two categories i.e. (i) offences punishable with death, imprisonment of life or
imprisonment for tee years; and (ii) offences punishable with imprisonment for loss than ten
years. In non-bailable offences falling in the second category (punishable with imprisonment for
less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be
declined only in extraordinary and exceptional cases for example ---

(a) where there is likelihood of the abscondence of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the, offence being repeated if the accused is released on bail; and

(d) whore the accused is a previous convict.

(b) Criminal Procedure Code (V of 19138)---

----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to furnish

surety/bail bond---H I,=-in bailable cases while remanding the accused to jail on his failure to
furnish surety/ail bond, Trial Court should consider the propriety of his release on execution of
personal bond and not only the fist ardor of judicial remand but also oath subsequent ardor must
show that the Court had really considered the propriety of his release on personal bond.

Many under-trial accused of bailable offences and preventive offences i.e.- offences under
suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want of surety bonds
although they, at the discretion of the Court, could be released on execution by chum of bond
(personal bond) without surety for their appearance before the Court, Even in petty cases the
Courts/subordinate Courts remand the accused to ,jail on their failure to produce sureties with the
result that hundreds of under-trial accused who could have easily been released on personal bond
are ratting in the jail for a long time. Supreme Court, therefore, 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. Not only the first order
of judicial remand but also each subsequent order must-show that the Court had really
considered the propriety of his release on personal bond. Instead of being severe to an under-trial
accused carrying presumption of innocence with them, it is bettor that the Court should be
lenient in the matter-of bail, food and medical facilities.

(c) Criminal Procedure Code (V of 1898)-._

_--S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner-- Accused in bailable
offences, potty offences and offences punishable- with imprisonment for less than 10 years
should not unnecessarily be detained in the jail---Under-trial prisoners are entitled to have
clothes and food privately under 5.32; Prisons Act, which facilities are to be liberally provided to
them till they are convicted.

Under section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and food
privately. These facilities should liberally be provided to them till they are convicted. The jails
are over-crowded. The detention of under-trial prisoners, food and medical facilities and their
transportation from jail to the Court heavily burden public exchequer. It would be in consonance
with the law of bail and in the fitness of things that accused in bailable offences, petty offences
and offences punishable with imprisonment for less than ten years should not unnecessarily be
detained in the jail.

(d) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Accused of offences punishable with death, or imprisonment for life, or for
ten years---Grant/refusal of bail to be determined judiciously having regard to the facts and
circumstances of each case---Provisions of 5.497, Cr.P.C. are not punitive in nature as regards
offences punishable with death; or imprisonment for life, imprisonment for ten years, for there is
no concept of punishment before judgment in law---Where the prosecution satisfies the Court
that there are "reasonable grounds" to believe that the accused has committed the crime falling in
category of offences punishable with death, or imprisonment for life, or imprisonment for ten
years the Court must refuse bail---Where, however, the accused satisfies the Court that there are
no reasonable grounds to believe that he is guilty of such offence, then the Court must release
him on bail---Court, for arriving at any such conclusion, is not to conduct a preliminary trial/
inquiry but will only make tentative assessment "Reasonable grounds" mean grounds which
appeal to a reasonable and prudent

man---Guidelines for Courts in disposal of bail cases furnished.--[Words anti phrases].

As regards offences, punishable with death, or imprisonment for life, or imprisonment for ten
years the provisions of section 497(1) are not punitive in nature. There is no concept of
punishment before judgment in the criminal law of the land. The question of grant/refusal of bail
is to be determined judiciously leaving regard to the facts and circumstances of each case. Where
the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused
has committed the crime falling in the category of offences punishable with death, or
imprisonment for life, or imprisonment for ten years; the Court must refuse bail. On the other
hand where the accused satisfies the Court that there are not reasonable grounds to believe that
he is guilty of such offence, then the Court must release him on bail. For arriving at the
conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty
of offence punishable with death, imprisonment for life or imprisonment for ten years, the Court
will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e., will
look at the material collected by the police for and against the accused and be prima facie
satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the
inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case
is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the
merits of the case or plea of defence at that stage.

The bail order must be carefully balanced and weighed in scale of justice and requirement of
relevant law. Reasonable grounds mean grounds which appeal to a reasonable and prudent man.

(e) Criminal Procedure Code (V of 1898)---

____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof-- Considerations

altogether different---Once bail is granted by Court of competent jurisdiction, then strong and
exceptional grounds would be required for cancellation thereof.

(f) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most serious step to
be taken.

(g) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Offence allegedly committed by accused punishable with death;
imprisonilpent for life or imprisonment for ten years---Benefit of reasonable doubt about
occurrence itself, identity of-the accused, part allegedly played by accused in the occurrence, his
presence on the spot and all the questions of his vicarious liability, would go to him at bail stage
--- Wherever reasonable doubt arises with regard to the participation of an accused person in the
crime, he should not be deprived of the benefit of bail, for bail can neither be withheld nor
cancelled as punishment.--[Benefit of doubt].

There is no legal compulsion to cancel the bail of the accused who allegedly have committed
crime punishable with death, imprisonment for life or imprisonment for ten years. Question of
benefit of reasonable doubt is necessary to be determined not only while deciding the question of
guilt of an accused but also while considering the question of bail because there is a wide
difference between the jail life and a free life. So, benefit of reasonable doubt 'about occurrence
itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the
spot and on the question of his vicarious liability, would go to him even at bail stage. There is a
tendency to involve innocent persons with the guilty. Once an innocent person is falsely involved
in a serious case then he has to remain in jail for considerable time. Normally it takes two years
to conclude the trial. When a person is detained in the jail, all his dependents also suffer
hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong
caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be
offered to an innocent man for his unjustified incarceration -at any stage of the case, albeit his
acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of
an accused person in the crime, he should not be deprived of the benefit of bail. The bail can
neither be withheld nor cancelled as punishment.

(h) Criminal Procedure Code (V of 1898)--

----S. 497---Bail---One Judge of the High Court on examination of the F.LR., statements
recorded under S.161, Cr.P.C. and the material collected during investigation was of the opinion
that there were no reasonable grounds to believe that the accused were guilty of the offence
alleged against them-- Another Judge of the same High Court on the same material on record had
come to totally different conclusion that there were reasonable grounds to believe that accused
persons had committed the alleged crime---Held contrary views/opinions of the two Judges of
the same High Court about the guilt of the accused, in circumstances, made out a case of further
inquiry within the meaning of S.497(2), Cr.P.C.

In the present case, one Judge of the High Court on examination of the F.LR., statements
recorded under section 161, CrP.C. and the material collected during investigation was of the
opinion, that there were no reasonable grounds to believe that the accused were guilty of the
offences alleged against them, whereas on the same material on record, another Judge of the
same High Court had come to a totally different conclusion that there were reasonable .grounds
to believe that the accused persons had committed the alleged crime. The contrary conclusions
arrived at by the two Judges of the High Court had made the existence of reasonable grounds to
connect the accused with the crime doubtful, entitling the accused to benefit of doubt at such
stage. In any case, the contrary views/opinions of the two Judges of the High Court about the
guilt of the accused had made out a case of further inquiry within the meaning of subsection (2)
of section 497, Cr.P.C.

Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on-Record for Petitioners.

Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State

Date of hearing: 31st August, 1994.

JUDGMENT

MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed against the
order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-arrest bail granted to
the petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and Kamran Bashic, Suhail
Zafar, Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.LR. No.146/1993, dated ?-4-
1993, Police Station Ferozeabad, by Mr. Justice Syed Khurshid Hyder Rizvi (as he then was)
was cancelled by Mr. Justice Mamoon Kazi of the same High Court.

2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown persons, duly
armed, committed dacoity in the house of Mst. Robina Amjad and took away ornaments,
jewellery, cash and prize bonds. On the report of Mst. Robina Amjad, F.LR. under section 17(3)
of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at
Police Station Ferozeabad on the same day at 4-15 p.m. The petitioners were arrested on 2-11-
1993 and the stolen property was allegedly recovered from them. They were released on bail by
the High Court which was subsequently cancelled vide impugned order. Hence this petition for
leave to appeal.

3. Learned counsel for the petitioners contended that post-arrest bail granted to the petitioners by
one learned Judge of the High Court has been cancelled by another learned Judge of the same
High Court without legal and factual justification.

4. Learned Additional Advocate-General has half-heartedly supported the order of cancellation

of bail on the ground of seriousness of the charge.

5. Being fully' conscious of the seriousness of the charge against the petitioners we have
examined the impugned order of the cancellation of bail with utmost care on our part.

6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code read as
hereunder:---

"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 as 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 of 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-bailable offence.---(1) When only 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:

Provided that the Court may direct that any person under the age of sixteen years or any woman
or any sick or infirm person accused of such an offence be released on bail:

Provided further that a person accused of an offence as aforesaid shall not be released on bail
unless the prosecution has been given notice to show cause why he should not be so released,

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 not 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.,"

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. Section 497, Cr.P.C.
divided non-bailable offences into two categories i.e. (i) offences punishable with death,
imprisonment of life or imprisonment for ten years; and (ii) offences punishable with
imprisonment for fuss than .ten years. The principle to be deduced from this provision of law is
that in non-bailable offences falling in the second category (punishable with imprisonment for
less than ten years) the grant of bail is 'a rule and refusal an exception. So the bail will be
declined only in extraordinary and exceptional cases, for example-_-

(a) where there is likelihood of abscondcace of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

We know that many under-trial accused of bailable offences and I preventive offences i.e.
offences under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails for want of
surety bonds although they, at the discretion of the Court, could be released on execution by
them of bond (personal bond) without surety for their appearance before the Court. We also find
that even in petty cases the Courts/subordinate Courts have remanded the accused to jail on their
failure to produce sureties with the result that hundreds of under-trial accused who could have
easily been released on personal bond are rotting in the jail for a long time. It is, therefore,
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. Not only the first order of judicial remand but also each subsequent order must
show that the Court had really considered the propriety of his release on personal bond. Instead
of being severe to an under-trial accused carrying presumption of innocence with them, it is
better that the Court should be lenient in the, matter of bail, food and medical facilities. It is to be
noted that under section 32 of the Prisons Act, an under-trial prisoner is . entitled to have clothes
and food privately. These facilities should liberally be provided to them till they are convicted.
The jails in our country are over crowded. The detention of under-trial prisoners, food and
medical facilities and their transformation from jail to the Court heavily burden public
exchequer. It would be in consonance with the law of bail and in the fitness of things that
accused in bailable offences, petty offences and offences punishable with imprisonment less than
ten years should not unnecessarily be detained in the jail.

7. As regards the first category of offences (punishable with death, or imprisonment for life, or
with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is
no concept of punishment before judgment in the criminal law of the land. The question of
grant/refusal of 'nail is to be determined judiciously having regard to the facts and circumstances
of each case. Where the prosecution satisfies the Court, that I there are reasonable grounds to
believe that the accused has committed the crime falling in the first category the Court must
refuse bail. On the other hand where the accused satisfies the Court that there are not reasonable
grounds to believe that he is guilty of such offence, then the Court must release him on' bail. For
arriving at the conclusion as to whether or not there are reasonable, grounds to believe that the
accused is guilty of offence punishable with death, imprisonment for life or with ten years'
imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative
assessment, i.e. will look at the material collected by the police for and against the accused and
be prima . facie satisfied that some tangible evidence can be offered which, if left unrebutted,
may lead to the inference of guilt. Deeper appreciation of the, evidence and circumstances
appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not
minutely examine the merits of the case or plea of defence at that stage.

8. The case-law on the subject of bail is very much clear that the bail order must be carefully
balanced and weighed in scale of justice and requirement of relevant law. Reasonable grounds
mean grounds which appeal to a reasonable and prudent man.

9. The considerations for the grant of bail and for cancellation of the same are altogether
different. Once the bail is granted by a Court of competent jurisdiction, then strong and
exceptional grounds would be required for cancellation thereof. To deprive a person on post-
arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel
the bail of the accused who allegedly has committed crime punishable with death, imprisonment
for life or imprisonment for ten years. Question of benefit of reasonable doubt is necessary to be
determined not only while deciding the question of guilt of an accused but also while considering
the question of bat: because there is a wide difference between the jail life and a free life. So,
benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played
by him in the occurrence, his presence on the spot and on the question of 'his vicarious liability,
would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in
our country to involve innocent persons with the guilty. Once an innocent person is falsely
involved in a serious case then he has to remain in jail for considerable time. Normally it takes
two years to conclude the trial. When a person is detained in the jail, all his dependents also
suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the
wrong caused by a mistaken relief of interim: bail granted to him, but no satisfactory reparation
can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit
his acquittal in the long run. So, whenever reasonable doubt arises with regard to the
participation of an accused person in the crime, he should not be deprived of the benefit of bail.
The bail can neither be withheld nor cancelled as punishment.

10. In the instant case, one learned Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, Cr.P.C. and the material collected during investigation
was of the opinion that there were not reasonable grounds to believe that the petitioners are
guilty of the offences alleged against them, whereas on the same material on record, another
learned Judge of the same High Court has come to a totally different conclusion than there are
reasonable grounds to believe that the petitioners have committed the alleged crime. We feel that
the contrary conclusions arrived at by the two learned Judges of the High Court have made the
existence of reasonable grounds to connect the accused with the crime doubtful, entitling the
petitioners to benefit of doubt at this stage. In any case, the contrary views/opinions of the two
learned Judges of the High Court about the guilt of the petitioners have made. out a case of
further inquiry within the meaning of ,subsection (2) of section 497, Cr.P.C. '

11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of the High
Court are supportable from the facts and circumstances of the case. The names of the
petitioners/accused are not mentioned although two of them namely, Tariq Bashir and Shahzad
Bashir are the first cousins of the complainant. In the F.LR., number of the accused given by the
complainant was five. During investigation it was exaggerated from five to nine. Three persons
namely, Jano Bhatti, Capt. Nadeem, and Nadeem son of Jano who were previously known to the
complainant were also implicated. The details of the jewellery, ornaments, number of prize
bonds and the amount of cash are not mentioned in the F.LR. In this view of the matter, it cannot
be said that on the tentative assessment of the evidence the learned Judge of the High Court was
not justified in granting, bail to the petitioners.

12. Accordingly, the petition is converted into an appeal and allowed, subject to the petitioners
furnishing fresh hail bonds in the sum of Rs. 25,000 each, with one surety each in the like
amount to the satisfaction of the trial curt. The challan has already been submitted in the Court.
The trial Court is directed to die the case within six months. The observations made by High
Court in the impugned orders and by this Court in this judgment are without prejudice to the case
of either party at trial.

By our short order we had converted the petition into an appeal and allowed the same. These are
the reasons therefor.
M.B.A:/T-104/S

Order accordingly