P L D 1975 Karachi 159 (PLP)

6. Section 337 (3), Cr. P. C. has been intrepreted by various High Courts. I will first refer to the case Mohamed Abdul Majid v. Emperor (A I R 1927 Sind 173). In that case the approver had applied for bail and the matter came: up before a Division Bench of the Judicial Commissioner's Court, Sind consisting of Percival J. C. and Rupchand Bilaram, A. J. C. Percival J.C. expressed the opinion that section 337, Cr. P. C. being in the nature of special provision, controlled the general section 498, Cr. P. C. On such process, of reasoning he rejected the bail application. It may be pointed out that the effect of section 561‑A, Cr. P. C. had not been considered. Rupchand Bilaram. A. J. C. disagreed with Percival, J. C. in regard to interpretation of sec tion 337 (3), Cr. P. C. The learned Additional Judicial Commissioner expressed that clause 3 of section 337, Cr. P. C. was an affirmative clause and the use of the word "shall" was primarily obligatory but less significantly interpreted, than the expression improved "must". In the concluding part of the judgment the learned Additional Judicial Commissioner expressed as follows "It is, therefore, more consistent than not that Cl. (3) should be interpret ed as obligatory only on the Magistrate granting the pardon requiring him to detain the accomplice in custody and as in no way affecting the powers of the superior Courts. This interpretation has this further advantage of being in conformity with the rule of interpretation that the jurisdiction vested in a superior Court is not to be ousted except by express language in or obvious inference from the provisions of a Statute : Jacob v. Brett (1875) 20 Eq. 1=44 L J Cb. 377=23 W R 556=32 L T 522; Oram v. Brearey (1877) 2 Ex. D 346=46 L J Ex. 481=25 W R 695=36 L T 475; Chadwick v. Ball (1885) 14 Q B D 855=52 L T 949=54 L J Q D,

396. If the alternative interpretation be accepted and it be held that Cl. (3) is a special provision providing for bail in the case of approvers. and, therefore, overrides the general provisions of bail contained in ACh. 39 then in that case it may fairly be argued that S. 497, Cl. (5) has also likewise no application and an approver, therefore, who was on bail before he got the pardon cannot be rearrested or detained in custody though it be found that there was every risk of his absconding and the security given by him was either insufficient or had been withdrawn." The next case in point is the case of Muhammad Ramzan v. The State (1971 P Cr. L J 1151) which is a judgment of Muhammad Afzal Cheema, J. The learned Judge in para. 11 of the judgment summed up the interferences from a wealth of case‑law that was placed before him and expressed himself as follows "Firstly the prohibition contained in sub‑clause (3) of section 337, Cr. P. C. is not absolute but qualified and conditional. Secondly the objects of detention of the approver till the termination of a trial also include inter alit the safeguard of his interest. Thirdly the prohibition would come into play only if the trial is either in sight or in progress. If however, the commencement of the trial had already taken several years and is still not within sight the authorities are agreed that bail could be allowed to an approver on the ground of abuse of the process of the Court, under section 561‑A, Cr. P. C. inasmuch as the prohibition contained in subsection (3) of section 337, Cr. P. C. would not be applicable." In the case of A. L. Mehra v. The State (A I R 1958 Pb. 72) a Division Bench of Bhandari, C. J. and Tek Chand, J. considered the import ‑of section 337(3), Cr. P. C. and in para. 16 of the judgment formulated a question whether the provisions of section 337(3), Cr. P. C. are directory and confer a discretion on the Court to release an approver on bail even during the pendency of a case in which pardon bad been granted. Rhandari, C. J. expressed the view that the word "shall" appears to indicate imposition of a statutory and imperative obliga tion on the Court to detain an approver in custody until the conclusion of the trial even when the prosecution of the case has been unreasonably delayed to the oppression of the prisoner and even when the delay is occasioned by the failure to present the challan or to deal with the case expeditiously. However, in para. 17 of the same judgment Bhandari, C. J. directed the release of the approver on bail for the following reasons "Indeed the delay which is being occasioned in the decision of this impor tant matter leaves one in reasonable doubt as to whether the detention of the approver is directed to achieve the object of law or merely to harass him for his part in the crime. It seems to me, therefore, that although the process of arrest was proper in its inception, the complaint of the approver arises in consequence of subsequent proceedings. Sub section (3) of section 337 implies that there is a trial in progress and if there is no such trial and no likelihood of such a trial then cessante ratione lex ipsa cassat. In re: Dagdoo Bapu I L R 46 Bom. 120 at p. 123: A I R 1922 Bom. 177 (1) at p. 177 (i)(j). This is an eminently fit case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months and who was recently released on parole at the urgent request of the Solicitor‑General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate." 'The learned Advocates for the two petitioners have also invited my atten tion to an order of my learned brother Mr. Justice Agha Ali Haider in Crimi nal Bail Application No. 965 of 1973 (unreported order) in which case bail was granted to the approver who had remained in custody for about six years for no fault of his own.

7. In the case of The State v. Bashir Ahmed (1973 P Cr. L J 593) bail had been granted to the approver by the trial Court and the State sought cancellation. Mushtaq Hussain Munir, J. while refusing to cancel bail expressed as follows : "Subsection (3) of section 337 of the Code of Criminal Procedure, there fore, does not mean that a person, who wants to become an approver should not in jail and spend whole of his life there for no fault of his own. This section would cover normal cases only. It has no appli cation to abnormal cases, in which there is no likelihood of an early trial as is the position in the cases now in hand." Delay in progress of a case has always been a relevant factor in the matter of grant of bail. In the case of Ahrar Mohammed and others v. The State (P L D 1974 S C 224) their Lordships granted bail in a murder case on the ground of delay in the proceedings. Hamoodur Rahman, C. J. while granting bail in that case expressed as follows : "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail ; but at the same time, it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in law as to why it cannot be treated as sufficient ground for the granting of bail. If such delay can be suffi cient for quashing a criminal proceeding, then it can also be an equally good ground for the granting of bail." No doubt the applicant was not an approver so that the bar under sec tion 337(3), Cr. P. C. was not attracted but all the same in spite of bar under section 497, Cr. P. C. to the effect that a person accused of an offence punish able with transportation or death shall not be released on bail, their Lordships have granted bail solely on the ground of delay. In fact my Lord the Chief Justice has observed that delay could be sufficient for quashment of proceedings and for such reason delay was an equally good ground for grant of bail. No other case was cited before me in support of the proposition that bail could be granted to an approver nor I am aware of any other decision.

8. On the other hand it must be initially stated that the provisions of sections 497 and 498, Cr. P. C. cannot be pressed into service for grant of bail to an approver and it is precisely for such reason that the learned Advocates appearing before me have invoked the jurisdiction of this Court under sec tion 561‑A, Cr. P. C. The question that then arises is whether the provisions of section 561‑A, Cr. P. C. could be attracted so as to enable this Court to grant bail to an approver despite the bar created under section 337 (3), Cr. P. C. Section 561‑A, Cr. P. C. reads as follows : "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." It would appear that the powers are neither alternative nor additional powers ; but only inherent powers which could be exercised in case of C necessity for giving effect to an order passed under the provisions of the Criminal Procedure Code or for preventing abuse of a process of a Court and for securing the ends of justice. The last clause is indeed significant. The following cases laid down the proposition that an approver cannot be granted bail (a) P L D 1968 Lah. 1030. (b) 1970 P Cr. L J 865, and (c) P L D 1966 Lah. 549 I will first consider the judgment of the Division Bench in the case of Rehmat Masih v. The State (P L D 1968 Lah. 1030) Illahi Bakhsh Khamisani, J. who wrote the judgment on behalf of the Division Bench observed as follows "The law is quite settled that inherent power vesting in the High Court under section 561‑A, Cr. P. C. is not an independent or a supplemental power conferred on the High Court to fill up vacuums or lacunae in law wherever necessary in the interest of justice if there is otherwise no provision in law in existence. All the Courts have been unanimous in holding that the power contained in section 561‑A, Cr. P. C. is ancillary and can be invoked only to prevent abuse of process of Court but only to the limited extent of power of that kind being in existence. As the power to grant bail to an approver is not only non‑existent but has been expressly taken away by section 337 (3), Cr. P. C. the question of granting bail under section 561‑A, Cr. P. C. would not arise. Granting bail to an approver under section 561‑A, Cr. P. C. will mean setting at naught the provisions contained in section 337 (3), Cr. P. C. The intention with which section 561‑A, Cr. P. C. was enacted was not to clothe the High Court with powers which could not otherwise be exercised on account of a prohibition contained in law." However, in the later part of the same judgment the learned Judge adverted to situations where detention of an approver on account of exceptional circumstances may amount to hardship or injustice and in such regard Khamisani, J. stated that even exceptional situations can be met with by methods other than circumvention of law. In that context the learned Judge stated as follows : "Even exceptional situations of the nature enumerated above by the learned counsel for Rehmat Masih can be met with by methods other than circumvention of law. The prosecution can withdraw pardon granted to an approver and the approver in that case can come with an application for bail under sections 496 to 498, Cr. P. C. The prosecu tion can also say that the trial in the case cannot be concluded and as such the condition laid down in section 337 (3), Cr. P. C. being incap able of being fulfilled an approver can go back to his original position of an accused and apply for bail under section 496, Cr. P. C. Even the accused himself, if he thinks that it is not in his interest to continue as an approver, can resile from his position of being an approver and entitle himself to bail under sections 496 to 498, Cr. P. C." This judgment would show that in circumstances when a trial was not likely to proceed showing that the trial could not be concluded, conditions under section 337, Cr. P. C. become incapable of fulfilment so that the approver could entitle himself to bail by virtue of the provisions of sec tions 496 to 498, Cr. P. C. In the case of Abdul Sattar v. The State (P L D 1966 Lah. 549) Nazeer Ahmed Mahmood, J. expressed the opinion that section 337(3), Cr. P. C. being a mandatory provi sion admitted of no other construction than that the approver as long as he retains such character has to remain in detention until the conclusion of the trial. It seems that no case‑law was cited before the learned Judge. In the case of Nazir Ahmad v. The State (1970 P Cr. L J 865) Muhammad Afzal Zullah, J. relying on the earlier cases in P L D 1966 Lah. 549 and P L D 1968 Lah. 1030 observed that since there was no provision for and no power in, the High Court for grant of bail to an approver, bail could not be granted even is extreme cases where an accused person had absconded. In that case the main contention on behalf of the approver was that since the accused had absconded the trial should be treated as having been terminated. The learned Judge rejected such contention.

9. On a consideration of the principle underlying section 337(3), Cr. P. C. and the case‑law I am of the view that the bar under section 337(3), Cr. P. C. cannot b; considered to be absolute. In fact the section itself envisages n situations where an approver having obtained bail before tender of pardon has not to be detained in custody under section 337, Cr. P. C. It cannot then be said that a necessary concomitant of grant of pardon is detention in custody. There may be cases where a trial is delayed beyond any reasonable proportion and for no fault of the approver. Would it then be just to keep the approver in indefinite custody. This would be an abuse of process of Court curable under section 561‑A, Cr. P. C. There may be a case where an approver is seriously sick and runs the risk of losing his life if he is in custody. Could it then b8 said that if he were an accused and actual perpet rator of the crime he could succeed in obtaining bail ; but if he has only been "privy" to the offence, so as to be tendered a pardon he must remain in cus tody. There may be cases where accused abscond and there may be no prospect of the conclusion of the trial. Would it be advancing the interest of justice to keep an approver in indefinite custody. There may be situations, when the approver, if he were to be tried as an accused, may ultimately be found not guilty or guilty of a lesser offence. In such case would it be in furtherance of justice to keep an approver in custody for a period beyond measure of justice. There may q case where the approver has actually fulfilled the terms of the: pardon by giving evidence but for some reasons to which the approver is not a contributory the case does not proceed. In such a case would it be just to keep an approver in custody. Numerous other situations could be contemp lated when detention of an approver may appear to be unjust. In the case of Rehmat Masih their Lordships of the Division Bench while holding the bar under section 337 (3), Cr. P. C. absolute contemplated that in situations of hardship the State could withdraw pardon so as to array the approver as an accused or the approver may fling the pardon and want to be tried as an accused. In such a case in view of their Lordships benefit of section 497 or 498, Cr. P. C. could be extended to the approver. But, if the State does not want to withdraw the pardon and the approver had already given evidence, what would be the position? While the: approver cannot persuade the State to withdraw the pardon, the only course left to him would be to resile from the terms of the pardon. Would it be just to allow such circumstances to come into existence when the approver out of sheer frustra tion, consequent to snail's pace of the trial, finds no alternative but to resile from the terms of his pardon. While the State may lose valuable evidence the approver forfeits his chance of obtaining liberty. Injustice would surely be heightened if the approver has given evidence also. I am therefore of the view that the bar contained in section 337 (3), Cr. P. C is not an absolute bar and bail could be granted to an approver under section 561‑A, Cr. P. C. in case of hardship of a nature as might border $ on injustice. No doubt the power to grant bail is not conferred under section 497 or 498, Cr. P. C. but the power vests only in the High Court. The terms of section 337(3), Cr. P. C. do not speak of bail but refer only to keep ing the approver in custody. Such functions are of the trial Court but do not fetter the powers of the High Court. No doubt the powers have to be exercised in cases of grave hardship and injustice and with due regard to the facts and circumstances of each case. This Court cannot be rigid in inter pretation of section 337(3), Cr. P. C. and not slow to act under section 561‑A, Cr. P. C. when justice demands grant of relief.

10. Coming to the case of Abdul Latif I find that he has remained in custody for nearly seven years. The case was initially before the Tribunal under the Criminal Law Amendment Act and five witnesses were examined. It is stated in the petition that the case was posted for hearing 40 times but only three witnesses have been examined. My learned brother Dorab Patel, J., had given a specific direction to the lower Court to complete the committal proceedings within six weeks of the date of the order F viz. dated 11‑3‑1974 but even this order has not been complied with. What is more that the proceedings are still at the stage of committal enquiry so that the trial is nowhere near completion. In my view further detention of Abdul Latif in custody would be unnecessary hardship besides being injust. I am informed that the case cannot proceed because the main accused is hospitalised and the learned Assistant Advocate- General could make no positive statement as to when would the proceedings in the trial terminate. It seems that conclusion of the trial is not insight. Mr. Hassanally has stated that his evidence has already been recorded. I, therefore, order that petitioner Abdul Latif shall be enlarged on bail in the sum of Rs. 10,000.00 (Rupees ten thousand) with one surety in the like amount to the satisfaction of the Sessions Judge, Nawabshah.

11. Coming to the case of Hakim Ali, he has been in custody only for a year and a half now. In fact the charge‑sheet was submitted only on 30‑5‑1973. I am not inclined to grant him bail as the delay in the case is not G inordinate, because cases in Courts take about two 'years for disposal. While rejecting the application of Hakim Ali I direct that the case wherein he is an approver shall be proceeded with expeditiously. If in spite of this direction a laxity is shown by the prosecution in the progress of the case, it shall be open to the petitioner Hakim Ali to move this Court again.

12. Criminal Bail Application of Abdul Latif is accepted and Criminal Misc. Application of Hakim Ali is rejected. S. A. H. Order accordingly.