P L D 1971 Supreme Court 279 (PLP)

SAJJAD AHMAD, J.-This judgment contains the reasons for our short order dated the 25th of May 1972, whereby we bad directed that this case be referred to Full Court, and that in the meanwhile Abdul Rashid, the appellant herein, be released on interim bail to the satisfaction of the Assistant Commis sioner, Rawalpindi, during the pendency of his trial. The relevant facts are as follows; The appellant (Abdul Rashid), along with his two sons, Javed Akhtar and Parvez Akhtar have been committed to stand their trial for the murder of one, Anwar-ul-Haq, and the attempted murder of P. X

41. Muhammad Rafiq, which took place at 9 p.m. on the 26th of October 1970, at a deserted place in Islamabad. Two others, namely, Nazir and Naseer, who were also allegedly concerned in this crime, are abscond ing and have beers declared as "proclaimed offenders". The incident was a sequel to an embezzlement of Rs. 52,000 com mitted to the Rawalpindi City branch of the United Bank Ltd. According to the prosecution case, Javed Akhtar and Nazir accused, who were employees of the Bank, were involved in this embezzlement, and Anwar-ul-Haq, deceased, was to the know of it, Anwar-ul-Haq, along with his companion, Muhammad Rafiq, P. W., had set out to meet Javed to claim a share In the booty. They were unable to find him, and Nazir offered to trace him for them. They boarded a taxi car, which came to a halt at a deserted place in Islamabad. Javed Akhtar and Pervez Akhtar suddenly appeared on the scene, accompanied by a third person. The deceased and P. W. Muhammad Rafiq were fired at by revolver shots by Javed Akhtar, Pervez Akhtar and Nazir, absconder. It was alleged that the third person who was accompanying Javed Akhtar and Pervez Akhtar, had raised a lalkara and incited them to c3mmit the murder. No description of the third person was given in the First Information Report But 24 days later, on the 19th of November 1970, an identification parade was held, in which Abdul Rashid, appellant, was picked up by Muhammad Rafiq, P. W., as the third person, mentioned by him in the F. I. R. He claimed to have identified him by the hair of his head. The appellant, who has been in Jail for about 18 months now, had moved the Sessions Judge and the High Court for his interim bail, but his prayer was rejected. He has come to this Court for special leave against the order of the High Court. After hearing his learned counsel, we issued notice to the Advocate-General, Punjab, and have heard the petition as an appeal. From the narration of facts given above, it would appear that the only circumstance, which connects the appellant with this crime, is the claim of P. W. Muhammad Rafiq that he had identified him by the hair of his head. Mr. Manzur Qadir, learned counsel for the appellant, has very strenuously argued that this piece of evidence, which Is inherently very weak, does not supply reasonable grounds for believing that the appellant was present when this crime was committed and that he was a privy to it. The learned Single Judge in the High Court has concluded that if this evidence is believed, it would establish the presence and privity of the appellant in the murder. But this is begging the question. The point to be determined is whether this evidence, as it stands, is sufficient to raise a reasonable ground for belleving that the accused has committed the offence attributed to him. This entails the question as to what are the powers of the committing Court in assessing the merits of the evidence for purposes of granting or withholding bail. Must the Inquiry Magistrate believe every allegation made in regard to an accused person, who is charged with an offence punishable with death or transportation, however stupid or unconvincing that allegation may appear to him, and refuse hail on that basis, or can he scrutinise that evidence at least to the extent of finding out whether it does or does not induce a reasonable ground -for him to believe that allegation? Mr. Manzur Qadir has made out another point, which merits consideration, viz., whether the commitment of an accused person for his trial on a charge of an offence punish able with death or transportation, creates a legal bar to his release on bail. In the case of Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003), the majority view took note of the fact that the mere existence of an order of commitment need not be equated with the finding that there appear reasonable grounds for believing that the accused person was guilty of an offence punishable with death or transportation for life. But in sub sequent cases, several observations occur, which suggest that a commitment is equivalent to a prima facie case, and a prima facie case is equivalent to reasonable grounds for believing that the accused is guilty. Many other cases, however, proceed on the basis that strength or weakness of the prosecution evidence is a relevant consideration for purposes of bail both before and after commitment. Section 220 of the Code of Criminal Procedure, which is the last section in Chapter XVIII of the Code under the heading "Of inquiry into cases triable by the Court of Session or High Court", lays down that "until and during the trial, the Magistrate shall, subject to the provisions of this Code, regarding the taking of bail, commit the accused by warrant to custody". This shows that the order of commit ment is subject to provisions of bail, as contained in the Code of Criminal Procedure, and in suitable cases bail can be allowed even after commitment. Under section 210, Cr. P. C., when upon taking the evidence produced by the prosecution in commitment proceedings, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he is to frame a charge. In contrast to this, section 497(1), Cr. P. C. operates to deprive the Court of its power to grant bail if there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life. The onus to establish such grounds is, of course, on the prosecution. In the first case, it is the satisfaction of the Magistrate as to the existence of sufficient grounds for committing the accused, and in the second, it is the appearance of reasonable grounds inducing the belief in the Magistrate of the guilt of the accused in an offence punishable with death or transportation for life. The difference between these two mental exercises is obvious. It is possible to conceive of several cases where evidence exists, which might support a charge but which may not appear trustworthy to a committing Magistrate. In such a case, there would be sufficient grounds for committing the accused for his trial but this does not mean that the committing Magistrate's mind Is shut out against forming any impression of his own as to the effect of that evidence, if he finds it weak and untrustworthy, requiring a further probe at the trial, he cannot come to the conclusion that there are reasonable grounds for believing that the accused is guilty, although he may feel that there are sufficient grounds for his commitment for trial. Under section 213, Cr. P. C., a Magistrate can cancel a charge after he has framed one, when the accused produces his defence evidence. This section, therefore, does confer powers on the Magistrate to examine defence evidence on its own merits in relation to the prosecution case. If a committing Magistrate cannot at all go into the merits of a case while engaged in commitment proceedings, what is the kind of a case to which his powers under section 213 can be co-related ? Of a much greater importance is the true scope of section 498, Cr. P. C. in so far as the powers of the Sessions Judge and the High Court are concerned in regard to the prayer for bail in cases of accused persons who are charged with offences punishable with death or transportation for life. Upon a review of the case-law, it appears that until the year 1945, when the Privy Council delivered its judgment in Jairam Dass's case, there was judicial consensus in the sub-continent on the point that section 498 was an independent section uncontrolled by the provisions of section 497 of Cr. P. C. Of course, while exercising powers under section 498, the Judges cannot lose sight of the considerations contained in section 497 as a matter of guidance but not as a matter of law. The Judicial Committee in Jairam Dass's case dealt with the question whe ther the case of a convicted person was or was not covered by section 498, and made an observation that that section dealt with matters which were ancillary or subsidiary to the provi sions of sections 496 and 497, Cr. P. C. Since the decision of the Judicial Committee in Jairam Dass's case, judicial opinion in the subcontinent has not been uniform as to the scope and effect of section

498. In Muhammad Ayub v. Muhammad Yaqub, already referred to above, the majority view was that section 498 was ancillary and subsidiary to sections 496 and 497, and that it did not enlarge the powers of the superior Courts to grant ball In cases where such bail could not be granted under the provisions of section

497. The minority view expressed by our learned brothers, Hamoodur Rahman, J., as his Lordship then was, and Muhammad Yaqub Ali, J., was that section 498, Cr. P. C., was in the nature of a residuary and supplementary provision, which gave to the superior Courts wide powers in appropriate cases not covered by sections 496 and 497 of the Code. The subsequent judicial trend has follow ed the majority opinion, but in its application, the pattern has not been uniform. In some cases, bail has been granted on ground of inordinate delay in the prosecution of a case, which obviously is not one of the grounds contemplated by section 497. (See Moula Bux and 3 others v. The State (1971SCMR196). A contrast of the provisions of bail contained in the Code of 1898 with the corresponding provisions of sections 388, 389 and 390 of the previous Code (Act X of 1872) and applying the well-known rule of interpretation as enunciated by the Barons of the Exchequer in Heydon's case, we are inclined to think that the majority view laid down by this Court In the case of Muhammad Ayub v. Muhammad Yaqub, already mentioned above, requires reconsideration, as we feel inclined to uphold the minority view stated therein. The rule laid down in Heydon's case (printed at p 91 of Crates on Statute Law, Fifth Edition by Sir Charles E. Odgers), is; "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered (1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the Parliament hath resolved and appointed to cure the disease of the common wealth? (4) The true reason of the remedy. The office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and to add force and life to the cure and remedy accorded to the true intent of the makers of the Act pro bono publico." In the context of the principles enunciated above, it would be quite relevant to consider how the law of bail stood under the 1872-Code of Criminal Procedure, what was the mis- chief which was not taken care of by the old law, and what is the remedy provided by the latter law, Le., the Code of 1898. In the Code of 1872, the provisions corresponding to sections 496, 497 and 498 in the 1898-Code, corresponding to sections 388, 389 and 390 of the 1872-Code. The heading of Fart IX in the latter Code was "Procedure incidental to inquiry and trial". Section .388 dealt with powers of a Magistrate in respect of a person "accused of any bailable offence'. Section 389 dealt with powers of a Magistrate in respect of a person "accused of any non-bailable offence", and placed certain restrictions on that power, section 390 dealt with the powers of the Court of Sessions in respect of "an accused person" without any reservation as to the nature of the offence of which he was accused or as to the power to admit him to bail. In the case of Queen v. Thakur Farshad (I L R 1 All. 151), the provi sions of section 390 of the old Code came up for considera tion, and the learned Judges in that case, after a comparison of the various provisions of the 1872-Code came to the conclusion that "accused person" in section 390 could not include a convicted person. One of the considerations that weighed with the learned Judges was that if section 390 were to be construed to apply to convicts, the power of the High Court, when granting bail to a convict under section 380 of the Code pend ing the hearing of his appeal, would be less than the powers of the Sessions Judge under section

390. This was an obvious anomaly. Another reason was that the heading of the Chapter was "Procedure incidental to inquiry and trial". The main reason was that the word used was "accused person". Under the 1872-Code, the power under section 390 was clearly a wider power available at a higher level and was in no case subsidiary or ancillary to the powers mentioned in sections 388 and

389. Another feature of the Cods of 1872 was that the well established rule in regard to bail, namely, that bail is not to be excessive, was expressly stated in section 129 of that Code with reference only to the bail to be taken by the police under section 128 of that Code. It seems that on a consideration of sections 128, 129, 281, 297, 388, 389, 390 and 399 of that Code in the light of the observations made in Queen v. Thakur Parshad cited above, the Legislature, in enacting the Code of Cr. P. C. of 1898, was seeking to enlarge the powers of the superior Courts for granting bail and removing the hurdles in the way of the beneficial exercise of that power. The heading of Part IX was changed to "Supplementary provisions". The phrase "accused person" was changed to "any person". The omission of the High Court from the wider general power was rectified by introducing High Court also in the revised section. The rude against excessive bail was generalised covering Courts as well. Considering the present fluid and uncertain state of the law relating to bail in cases of offences punishable with death or transportation and the lack of uniformity in the application of the law, resulting in confusion in the Courts, it appears desir able that the following questions be referred to the Full Court for its decision :

(1) What is the correct scope of section 498 of the Cr. P. C. ? Whether it is ancillary or subsidiary to sections 496 and 497 in all respects, or does it confer a supplementary and residual power on the superior Courts, I.e., the Sessions Court and the High Court, which is not available to other criminal Courts ? Does the majority view in Muhammad Ayub v. Muhammad Yaqub lay down the correct law ? (2) If as a matter of law, the discretion of the superior Courts in regard to taking bail is unfettered, what are the principles which should be followed as guiding rules for the exercise of that discretion ? (3) What precisely is the scope of the phrase "The Magis trate is satisfied that there are sufficient grounds for commit ting the accused for trial" appearing in section 210, subsec tion (1) of the Cr. P. C., as contrasted with the scope of the expression "If there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life" occurring in section 497 of the Cr. P. C. ? (4) Does or does not this contrast, read with the other relevant provisions, yield the conclusion that the committing Magistrate has the power to grant bail even after he decides to commit the accused person for his trial for an offence punishable with death or transportation for life ? The case shall be laid before the Full Court as soon a possible after the long vacation. K. B. A. Order accordingly.