1997 PLP 279 (MLD)

"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 less 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 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 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) where the accused is previous convict." Mr. S.M. Ismail Shah has referred the following authorities:

(1)1976 SCMR 145 (Munir Muhammad and 3 others v. The State): The observation of the Supreme Court is as follows: "Customs authorities, as appearing from notice issued by them, not invoking item (8) involving sentence of 10 years' R.I.

View, on present record, possible of offence falling under item (89) punishable with only 6 years' R.I.

Appellants in custody for some months without any prosecution evidence having been recorded

Appellants released on bail. " (2)1977 SCMR 449 (Mansha Khan and 2 others v. The State): The Hon'ble Supreme Court has observed as under:

"An offence under section 325, P.P.C. is punishable with seven years' rigorous imprisonment and is not one of those in which bail is refused by reason of the prohibition contained in section 437, Cr.P.C. Therefore bail should not be refused merely because the offence is non bailable. " (3)1977 PCr.LJ 478 (Ghulam Murtaza Shah v. The State): The learned Single Judge of the Lahore High Court has held as under: "A delay of more than one year has been considered to be sufficient ground for grant of bail, as held by the Supreme Court of Pakistan in Criminal Appeal No.70 of 1972 (Muhammad Din etc. v. The State) on account of 'inordinate delay' in the completion of inquiry proceedings." Admittedly accused/applicant was arrested from the City of Karachi and is in custody since then. The charge-sheet against the accused/applicant has been filed in Court where he has to face the trial and produce defence and documents, if any. Definitely this process will take some time. So far as the contention of the learned counsel for the State that due to amendment in section 14A of Ordinance No.II of 1996 Foreigners (Amendment) Ordinance, 1996 this Court has no jurisdiction to entertain the application for enlarging the applicant/accused on bail is not tenable. I would like to refer section 561-A, Cr.P.C. which reads as follows: "Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." I have given my anxious thought to the matter and have perused the record available and also the authorities cited by Mr. S.M. Ismail Shah, learned counsel for the applicant/accused and Mr. Habib Ahmad, learned counsel for A.-G. The case-law referred by Mr. Habib Ahmad in my humble view does not favour the case of the prosecution. On the contrary it supports the case of the accused/applicant. The accused/applicant is in custody since 26-7-1995 and the witnesses were police personnel as such, prima facie, there is no possibility of tampering of the prosecution evidence. The trial is yet to be concluded, apparently same would take time. It is settled law that law is not to be stretched in favour of the prosecution and benefit of doubt arising out of the prosecution case is to be exercised in favour of the accused. Advisedly I refrain to dilate upon merits of the case regarding non-availability of the documents in support of Pak Nationality or N.I.C. of the applicant because trial is yet to commence, witnesses are to be examined, statement of the accused is to be recorded and is to be examined on oath, if he so desirous, so that case of the either party may not be prejudiced during the trial. No doubt amendment in the Foreigners Act has been introduced very recently referred hereinabove showing any person/accused of offence punishable under subsection (2) of section 14 shall not be released on bail, with due respect to the amendment, the inherent powers of the Court under section 561-A, Cr.P.C. mentioned in the earlier part of this order are not affected and Court in order to secure ends of justice can pass appropriate orders. The accused/applicant is facing trial before City A.D.M. Karachi South, since 3-8-1995 whereas the accused was arrested on 26-7-1995. The Ordinance referred by Mr. Habib Ahmad shows that person found guilty of offence under section 14 Foreigners Act is to be punished for imprisonment for a term which may extend to 10 years but shall not be less than 2 years and fine may extend to ten thousand rupees. According to the Criminal Procedure Code, the trial Court viz. City A.D.M., Karachi South, cannot award sentence up to ten years, if accused is found guilty and so for as the proviso that sentence shall not be less than 2 years is concerned the accused is in custody since more than a year. For the foregoing reasons, I am inclined to allow the application and order that accused/applicant be released on bail on furnishing surety in the sum of Rs.2 lacs and P.R. bond in the like amount to the satisfaction of the Trial Court/Nazir of this Court. N.H.Q./M-133/K Bail granted