P L D 1976 Peshawar 112 (PLP)

Mufti Muhammad Idris, A: G. for the State. Date of hearing: 13th February 1976. The petitioner Taj Muhammad, an A. S. I. in the Crimes Branch, Peshawar, seeks pre‑arrest bail in a case under section 506/341/34, P. P. C.

2. The petitioner made application in the Court of Additional Sessions Judge, Peshawar, where he was given ad interim bail and on the day of the final hearing, the learned Judge passed the following order:-- "The petitioner was directed to wait outside the Court for announcement of the orders as I was busy in Sessions case. The case was called out for order several times but the petitioner Taj Muhammad abstained from appearance in the Court. I am, therefore, constrained to with draw his bail. His application is rejected.

3. Before proceeding further, it may be mentioned that the co‑accused of the petitioner was released on bail by the Ilaqa Magistrate against whose bail application for cancellation was dismissed. The learned counsel does not dispute the statement made at the bar by the Advocate‑General that he is still on bail allowed to him by the trial Court.

4. The petitioner came to this Court by challenging as order of the Additional Sessions Judge and after remanding the matter for disposal on facts, it was placed before another Additional Sessions Judge who by an elaborate order rejected the application. Hence the petitioner has once again coma to this Court, However, this time on the factual grounds alleging that he has been falsely implicated on account of certain grievance alleged by him of the year 1973 and that the offence charged against him falls at the most under section 341 P. P.C. and that section 506, P. P. C. has been fringed by the local police who according to the petitioner is under the influence of the complainant so as to colour the alleged transaction with the complexion of gravity and make the offence non‑bailable and lastly that on the relevant date and times he could not be at the scene of occurrence. In support of the last plea he has placed on record a number of affidavits. Before adverting to the points in seriatum I propose to deal with the last point.

5. It is only in gases of exception attended by extraordinary circumstances where the plea of alibi is considered "sufficient" for allowing bail to an accused person. In the case of Ch. Muhammad Shafi v. Muhammad Anwar Sama etc. (1915 S C M R 219) their Lordships of the Supreme Court by affirming the view that affidavits of a Couple of dozens of members of Provincial Assembly in support of the alibi of the accused person could not be lightly brushed aside, does not lay down the rule that matters of like nature shall be decided on the basis of affidavits. However, there is no absolute bar in this regard in suitable cases.

6. Reverting back tp the other points, this would be on the face of it falling out of sphere of the matter of bail to sit on judgment that the charge against the petitioner is basically false and the addition of section 506, P. P. C. with the offence is the mechanization of police for an ulterior motive on account of the tall stature (as suggested by the learned counsel) of the complainant.

7. The petitioner's application was rejected on 27‑11‑1975 by an order considering almost each point raised ill the petition before this Court making grievance of the fact that the impugned order amounts to expression of opinion to his prejudice at the trial. Therefore, I would like to make it clear that those observations shall not reflect on the merits of his case at the trial.

8. The next point to be considered is the severality of the punishment prescribed for the offence as it was contended by the learned counsel Mr. Khalid Ranja that the maximum penalty provided in law for the offence is seven years. It seems to me, however, that the point must be looked at with the pre‑requisite of law in mind, that submitting one‑self to the jurisdiction of the trial Court is the normal procedure unless one's case is distinguished by peculiar circumstances as alluded to earlier i.e. the case of 1975 S C M R 219.

9. Section 497, Cr. P. C. first gives a discretion to the Magistrate to order release on bail even in cases of non‑bailable offences, barring a few. This prima facie gives powers to the Magistrate to grant bail and power to refuse it, whose discretion is to some extent controlled by restriction of a case punishable with death or transportation envisaged by subsection (1) of section 497, Cr. P. C. On the other hand subsection (2) provides that if there are not reasonable grounds for believing that the accused has committed non‑bailable offence, the accused shall be released on bail. That being so if the petitioner endeavours to satisfy this Court that he has been falsely implicated etc., why he cannot do so in the Court of first instance as it was done by his co‑accused. Mr. Khalid Ranja, learned counsel for the petitioner, quoted 1969 S C M R 233, 1971 P Cr. L J 136, 1973 P Cr. L J 205, P L D 1906 Lah. 902 and P L D 1963 Lah.

279. All these precedent cases relate to after arrest of the accused persons.

10. It is true that section 498, Cr. P. C. gives an unfettered discretion to the High Court or the Court of Session to admit an accused person on bail but this power was given by the Legislature with a definite purpose. In cases where there is a reasonable ground for believing that the accused person has been guilty of an offence punishable with death or transportation for life as regards which the Legislature has thought fit to prohibit Magistrates from allowing bail at all, the power of giving bail in suitable cases given however to this Court and Court of Sessions and in all other non‑bailable offences, the practice of resorting to section 498, Cr. P. C. is in my view against the normal practice and must not be encouraged. To repeat it with emphasis, I must say that though the discretion under section 498 is absolute, the High Court and for that matter the Court of Sessions must exercise it judicially and since the Legislature has chosen to introduce the initial stage of dealing with the question of bail to Magistrates and while the Magistrates have ample power to exercise their discretion, in all matter barring very few, the High Court ought not to grant bail in such cases except for exceptional and for very special reasons. For these reasons, I do not consider this a fit case for bail. The petition thus stands dismissed. S. Q. Petition dismissed.