1995 PLP 1415 (MLD)

Subsection (3) of section 4 of the Act provides that the Chief Minister of the Punjab shall be the Chairman of the authority. Section 6 of the Act lays down the powers and functions of the Authority and clause (iv) of subsection (3) of section 6. gives the Authority the power to sell, lease, exchange or otherwise dispose of any property vested in it. In this legal framework, Col. (Retd.) Ghazanfar Ali Khan, the petitioner, was not a part of the Authority but only an employee of the Authority and in that capacity bound to carry out and give effect to orders of the Authority. It is also clear that the petitioner in his capacity as an employee of the Authority was neither empowered to entertain applications for the allotment of plots belonging to the L.D.A. and nor did he pass any order for the allotment of any plots of the authority. The applications for allotment of plots were made to the Chief Minister of the Punjab in his capacity as the Chairman of L.D.A. and the orders of allotments were made by the Chief Minister of the Punjab being the Chairman of the L.D.A. Thus, prima facie it cannot be said that the petitioner was guilty of any cheating, forgery or criminal breach of trust. As a matter of fact no role whatsoever has been assigned to the petitioner.

6. The law relating to the grant or refusal of bail has been laid down in Chapter XXXIX of the Code of Criminal Procedure of 1898. Section 497, Cr.P.C. lays down when bail may be taken in case of non-bailable offence. Subsection (2) of section 497, Cr.P.C. provides that:

"When any person accused of any non-bailable offence is arrested or it warrant by an officer-in-charge of a police station, or brought before a Court, he may be released on Thus so far, the Court has a discretion which, of course, must be exercised judiciously and not arbitrarily. However, the same subsection has a dichotomy because it goes on to lay down that:

"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". In this part of subsection (1) of section 497, Cr.P.C. the discretion of the Court has been curtailed by prohibition. Notwithstanding the prohibition contained in the later portion of subsection (1) of section 497, Cr.P.C., the first proviso to section 497(1), Cr.P.C. creates an exception to the prohibition by again creating a discretion in the Court regarding a person who is under the age of 16 years or any woman or any sick or infirm person.

7. The policy of the law and, the view of superior Courts has always been that the grant of bail even in case of non-bailable offences is the rule and refusal of bail is an exception. This has been the view of this Court since 1925 which is evident from the case entitled "Emperor v. Ghulam Muhammad and others" reported in AIR 1925 Lahore

510. The same view was taken by the Supreme Court of Pakistan in the case of Adbul Malik v. State reported in PLD 1968 SC 349 wherein it was further held that the basic essential governing the matter of bail is that bail should never be withheld as a punishment. In the same case their Lordships of the Supreme Court were pleased to observe that the words "reasonable grounds" appearing in the later part of subsection (1) of section 497, Cr.P.C. are its expression which connote such grounds as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import that "suspicion", but where reasonable grounds are not disclosed and only a further inquiry is warranted, then clearly the case will fall under subsection (2) of section 497, Cr.P.C. and in that case bail should not be withheld.

8. The criteria for the grant or refusal of bail has been laid down in the case of Muhammad Iqbal v. The State reported in PLD 1963 Lah. 279 by the late Mr. Justice Manzoor Qadir, the then Chief Justice in his-inimitable style as follows:

"The provisions relating to bail in respect of persons accused of having committed offences are an attempt to strike a balance between three requirements, all of which are essential. A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a person is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and feel they have nothing to lose by committing more offences should not be allowed to be in a position to do so. This is the third requirement. From the first it follows that an accused person should not be deprived of his liberty during his trial; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him; from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb."

9. Bail has to be allowed or rejected on the touchstone of section 497, Cr.P.C. and on the basis of the material placed before the Court and the Court has to make an assessment, albeit tentative regarding the evidentiary value of such material before passing an appropriate and just order. It was for this reason that their Lordships of the Supreme Court were pleased to observe in the case of Khalid Saigol v. The State reported in PLD 1962 SC 49 that:

"The mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence:"

10. In the present case, the petitioner was arrested on 10-6-1994 and is in jail ever since. The investigation has been completed by the Investigating Agencies and all that has been shown in Court is the F.I.R. and nothing else. The learned Additional Advocate-General has not even stated as to when will the trial of the petitioner commence. It is not possible for the superior Courts of any civilized country having a democratic dispensation to permit its citizens to be detained indefinitely in jails without a fair trial. Every citizen of the State is entitled to a fair and free trial without delay. This view has earlier been expressed by a Division Bench of this Court in the case of Mahfoozur Rehman v. State reported in 1993 MLD (Lab.) 1399. The same view was expressed by this Court in the case of Qari Abdul Aziz Jalali v. State reported in PLD 1992 Lah. 165 and the case of Naveed Asif v. State reported in 1987 MLD (Lah.) 1714.

11. As the petitioner is an elderly person being about 67 years old and is also both sick and infirm, therefore, a report regarding the state of his health was called for from the Medical Superintendent, Services Hospital, Lahore. The said report dated 28-11-1994 reveals that the petitioner suffers from i breathlessness on account of hypertension and his E.C.G. shows that there is a strain in the left ventricle of the heart. Thus, clearly the petitioner suffers from hypertension and has a heart condition.

12. The first proviso to subsection (1) of section 497, Cr.P.C. creates an' exception and lays down that even though there may be reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, he may still be granted bail if he is sick or infirm. It is significant that the words used are not sick and infirm but sick or infirm meaning thereby that both sickness or infirmity are grounds for the grant of bail independently of each other. The reason for this is not difficult to find. While 'sickness is relatable to an ailment, illness or disease, infirmity is relatable to weakness and senility independently of any ailment or disease. Both have been treated as independent grounds for the grant of bail.

13. In the present case the petitioner is entitled to the grant of bail on merits because reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not exist. Therefore, the case of the petitioner is covered by subsection (2) of section 497, Cr.P.C., which entitles him to be released on bail.

14. The petitioner is also entitled to the benefit of the proviso to subsection (1) of section 497, Cr.P.C., being sick as well as infirm within the meaning of the said proviso. He is, therefore, released on bail provided he furnishes bail bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of the trial Court/Assistant Commissioner/Duty Magistrate, Lahore. H.B.T./G-259/L Bail granted.