1986 P Cr (PLP)

Basharat Ahmed Sheikh for Petitioner. M. Nisar Mirza, Addl. A.‑G. for the State. Date of institution: 12th January, 1986. The petition raises the question of bona fide of detention of Muhammad Lal, son of the petitioner, who was arrested and sent to judicial lock‑up in the light of the order of this Court, passed on December 26, 1985.

2. The incident of assault resulting in multiple injuries caused to Abdul Ghani, complainant, occurred on October 13 at 3 p.m. while the complainant was going home from Mirpur city where in the office of Electrical Engineer, in the morning of same day he was taunted and jeered upon by some of the accused persons. Muhammad Lal detenu was ascribed infliction of grievous hurt with a 'Danda'. Next day the accused persons, including Muhammad Lal, moved for bail pre‑arrest before the District Criminal Court, Mirpur where they were granted interim relief and the order was finally confirmed on November

18. This order was challenged before this Court on various counts to the extent of Zulfiqar, Muhammad Lal (the present detenu), Murad Hussain and Muhammad Siddique, on November 23, 1985. Prior to that, on conclusion of investigation, the challan was submitted in the Tehsil Criminal Court where the accused persons, including Muhammad Lal except Aslam accused, were ordered to furnish bail bonds and personal bonds in the sum of Rs.10,000 each. This order was passed by the trial Court on November

19. At the time of deliberations of this Court over the question of bail, the order of bail passed by the trial Court was not brought to light. On examination of the features of the incident, the concession of bail allowed to the accused persons except Muhammad Lal, detenu, was sustained. The bail of Muhammad Lal was cancelled with the direction that the trial Court shall be free to consider the question of bail on renewal of the application irrespective of the order of this Court. In view of the order of this Court, the accused was arrested and sent to judicial lock‑up. Despite the order of the release of the accused passed by the trial Court on November 19, the Police, in presence of order of cancellation of bail of this Court, refused to release the accused and sent him to judicial lock‑up. A proposition has, therefore, emerged as to whether in presence of the order of release passed by the trial Court and subsequent order of cancellation of bail recorded by this Court, the detention of the accused is valid or not.

3. Mr. Basharat Ahmed Sheikh, the learned counsel for the petitioner, urged that at the time of initiation of cancellation of bail proceedings in this Court and ultimate passing of the order of cancellation of bail, the accused was already admitted to bail by the trial Court. The order of the trial Court was neither challenged nor otherwise examined by this Court. Therefore, it was still intact. It was, elaborated that the impugned order was passed by the District Criminal Court whereby bail pre‑arrest was given to the accused. This Court in its own appraisement of the principles applicable to a case of bail before arrest. arrived at the conclusion that the order of the District Criminal Court was incorrect, as such not sustainable. There being a definite distinction in the principles of grant or refusal of bail in the cases of bail after arrest and before arrest the dictum of this Court was necessarily applicable to a case of bail before arrest and not to a case of bail after arrest. On this premises, the trial Court having jurisdiction to admit an accused to bail under the provisions of section 497, Cr.P.C. when already had released an accused on bail and that order being intact, the accused could not be deprived of the concession of bail by virtue of the decision of this Court. The contention was opposed by Mr. M. Nisar Mirza, the learned Additional Advocate‑General. He argued that the order of the Trial Court was passed in the light of the decision of the District Criminal Court which released the accused on bail pre‑arrest Therefore, in opinion of the learned Additional Advocate‑General, the order, of the trial Court was not passed in the spirit of provisions of section 497, Cr.P.C. This was so, as according to him, the accused at the time of his release, was not arrested or under detention as visualised by law.

4. The law applicable to the case of bail is provided under sections 496, 497 and 498, Cr.P.C. The provisions of section 496, Cr.P.C. are attracted to an accused of bailable offence, section 497 of the Code, on the other hand, applies to an accused charged with non‑bailable offence. It postulates that an accused charged with any non‑bailable offence, when arrested or detained without warrant by an Officer of Incharge Police Station or appears or is brought before a Court, he may be released on bail. The discretion of the Court is restricted in the manner that the accused person charged with non‑bailable offence when ascribed culpability punishable with death or transportation for life, shall not be so released, in presence of reasonable grounds connecting him with such guilt. It contains exceptions to the rule in the shape of proviso and provisions of subsection (2). It is accepted that in present case, the provisions of section 497, Cr.P.C. are obviously attracted. The main objection raised by the learned Additional Advocate‑General is that the order of bail passed by the trial Court is void ab initio, as at the relevant time, the accused was neither arrested nor detained as contemplated by section 497, Cr.P.C. The language used in the section clearly laid down that the Court was competent to apply its mind to the question of bail not only when the accused was arrested or detained but even when he appeared or was brought before it. In this case accused was admitted to bail when he appeared in the trial Court. At present, we confined our conclusion to the word "appears". It is noticed A that the legislature had used the words "arrested", "detained", "brought before the Court" and "appears" distinctly. The use of word "appears" manifests independent position and obviously different from the state of arrest, detention and production of accused. The state of appearance of an accused before a Court may be anything except the position of his arrest, detention or his bringing before the Court. In Muhammad I Ayub's case PLD 1966 S C 1003, the Supreme Court of Pakistan, while constructing the true scope of section

498. Cr.P.C. analysed various positions of an accused charged with non‑bailable offence as contemplated under section 497, Cr.P.C. The expression "appears" was described by Mr. Justice S.A. Rehman who carried with him majority view as:‑-- "The word "appears" in sections 496 and 497, need: not be construed to include voluntary appearance even in circumstances of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then would be that under sections 496 and 497, Cr.P.C., the Court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the Police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested." The dictum of the Supreme Court squarely applies to the present case as here, undoubtedly, at the time of passing of order of bail by the trial Court, Muhammad Lal appeared in pursuance of his undertaking given before the District Criminal Court in the shape of bail bond. It is undenied that the order was passed when the challan was already submitted and its cognizance was taken by the trial Court. The appearance of the accused was, therefore, not absolutely voluntary but in compliance with the order of bail passed by District Criminal Court and his summoning in its light. The order of bail of the trial Court cannot be termed as void ab initio. The objection is, therefore, not sustained.

5. It is rightly pointed out that previously the deliberations of this Court, primarily, confined to the considerations relevant to the proposition of bail pre‑arrest. It is admitted that at the time of such deliberations, the order, of bail of the trial Court was not brought to light or in the notice of this Court. It is equally correct to say that at the time of passing of the order of the trial Court, the accused was already on bail allowed by the District Criminal Court. It is, therefore, of interest to support that at the time of grant of bail by the trial Court, it may have been influenced by the order of District Criminal Court, as such would have admitted the accused to bail, but such an assumption finds no support from the order: Therefore, it is safe to presume that the accused was admitted to bail by the trial Court in the light of its independent decision.

6. The police was obviously faced with a difficulty as one hand, concession of bail allowed to the accused by the District Criminal Court was withdrawn by this Court and on the other hand, he was admitted to bail by the trial Court through an independent order. It, therefore, rightly acted in pursuance of order of a superior Court. The petitioner was compelled to invite the attention of this Court to resolve the controversy as in his view, unless the order of bail given by the trial Court was set aside, he could not be deprived of liberty. In an identical situation, in the case of 'Tariq Mahmood v. State decided by my learned brother, Mr. Justice Sardar Muhammad Ashraf Khan, on June 25, 1984, the order of bail of the trial Court was sustained by setting aside the order of bail pre‑arrest passed by another Judge of this Court. The relevant part of that order is reproduced below:‑ "In view of the above ruling of the Division Bench of this Court, the challan pending against the petitioner for the offence under section 15 of the Islamic Penal Laws Act and section

307. A.P.C. has rightly been put up before the Tehsil Criminal Court. The said Court being the Court of competent jurisdiction had the power to allow bail to the petitioner which, as stated earlier, has been granted to him. The said bail is still intact and has not been cancelled so far by any competent Court with the result that the petitioner's bail subsists and legally speaking, he is still on bail competently granted to him. As long as bail allowed to him by the trial Court is not cancelled by the Court of competent jurisdiction, the petitioner cannot be arrested and detained in connection with the case pending before the Tehsil Criminal Court. In this view of the matter, the arrest and detention of the accused‑petitioner in the judicial look‑up in connection with the case against him under section 307, A.P.C. is unlawful, for which reason the order of his release from the illegal detention is required to be made in exercise of the inherent powers of this Court vested in it under section 561‑A, Cr.P.C., as such a course appears to be necessary in the ends of justice in order to undo a wrong done to the petitioner by arresting and detaining him in the judicial Lock‑up without legal sanction behind it." The proposition has emerged on account of suppression of order of bail of the trial Court. It is regretted that the parties, despite knowing the order of the trial Court, maintained complete silence. The omission on their part has, therefore, landed the accused in difficulty. The learned Additional Advocate‑General accepted that the order of the trial Court was not challenged even at this stage. This suggests that the prosecution has no grievance against the order of bail of the trial Court. In view of the direction contained at the concluding end of the order of this Court, passed on December 26 last, whereby the trial Court was given complete freedom to consider the question of nail on renewal of the request irrespective of the order of this Court, it is deemed expedient to uphold the order of bail passed by the trial Court. The detention of Muhammad Lal, in the present case, is set aside. He shall be released provided he furnishes bail bond in the sum of Rs.50,000 Rs. fifty thousand) with his personal bond in the like amount, to the satisfaction of A.D.M., Mirpur. M.Y.H. Petition accepted.