P L D 1968 Lahore 1030 (PLP)

KHAMISANI, J.‑-An application for bail was moved on behalf of Rehmat Masih who was in custody under section 337(3), Cr. P. C. for his release on bail. It came up before our learned brother Mr. Justice Muhammad Siddiq on the 21st of September 1967. Two authorities were cited before him. One was Abdul Sattar v. The State (P L D 1966 Lah. 549) and the other was unreported case of Abdul Sattar v. The State (Criminal Miscellaneous No. 3692 of 1966, decided on 20th January 1967). In the former case the view taken was that an approver cannot be enlarged on bail on account of a prohibition contained in subsection (3) of section 337, Cr. P. C. whereas in the latter case it was held that section 337(3), Cr. P. C., was no bar to an approver being released on bail by exercise of inherent jurisdiction of this Court vesting in it tinder section 561‑A, Cr. P. C. Mr. Justice Muhammad Siddique consequently referred the matter to the Chief Justice for constituting a larger Bench to resolve the difference of opinion appearing in the above‑mentioned two cases decided by two Single Judges of this Court. This matter has consequently come up before us.

2. For the purpose of deciding‑ the issue whether an approver can be released on bail despite the prohibition contained in section 337 (3), Cr. P. C., it is necessary that subsection (3) of this section should be reproduced. It reads as under: "337(3). Such person, unless he is already on bail, shall be detained in custody until the termination of the trial." A plain reading and the language of this subsection leave no scope for doubt that an accused person, who has been granted pardon under section 337, Cr. P. C., and has agreed to become an approver, has to remain in custody till the trial of the case in which he is made an approver has concluded. The language of section 337(3), Cr. P. C., has received the attention of the numerous Courts and the concensus of opinion by all Courts is that an approver, as long as the trial of the case in which he has agreed to become an approver has not concluded, shall be kept in custody. In other words the view taken is that an approver so long as the trial of the case in which he is an approver has not concluded, shall not be released on bail. The provision contained in section 337(3), Cr. P. C., is mandatory and consequently cannot be set at naught, it being based on a very salutary principle of public policy and public interest. An accused, the moment he accepts pardon and becomes an approver, ceases to be an accused and assumes the character of a witness taking upon himself the task of disclosing the entire case within his knowledge truly and fully without concealing anything or giving false evidence. His character as a witness comes to an end only when he has concealed anything he knows or gives false evidence, in which case he relegates himself to the position of an accused again. The position that the approver, therefore, occupies is a peculiar one. He has been assigned the role of a witness which is contingent upon the performance of certain conditions and he gets back into the position of an accused in the event of their non‑fulfillment. In the case of Karuppa Servai v. Kandaru alias Muniandi Tehvan (A I R 1952 Mad. 833) the position of an approver has been described in the following words : "Besides, an approver has to be kept in safe custody till the conclusion of the trial (or inquiry if no committal ensues) like a sealed will in a will forgery case and then disposed of according to merits. He is not to be allowed to be let off on bail, when he is not on bail at the time he is tendered a pardon, but is to be kept fn safe custody, free from police control or influence, or the influence of the accused. If he is released on bail, after he has given a statement in the inquiry Court in full conformity with the statement given by him before the District Magistrate, it is obvious that the Police and the accused can both get at him freely thereafter, and there will be no guarantee that he will give out the whole truth at the trial if committal ensues. Truth, at the trial, in the case of an approver, does not mean sticking to the very statement given by him before the District Magistrate or in the committal Court, but speaking to the true facts as they occurred, for truth is one, and not two. The Public Prosecutor, before he can make an approver an accused, has to certify, under section 339(1), Criminal Procedure Code, that, in his opinion, the approver has wilfully concealed anything essential or given false evidence or not complied with‑ the conditions on which the tender of pardon was made. It is of vital importance both to the accused and to the public that an approver should not be treated like an ordinary accused or witness, but strictly according to the Provisions of the Criminal Procedure Code, section 337(3) being the prime provision regarding him. There may be a little doubt whether an approver can be released after he has given his full evidence in the Sessions Court, and where the Public Prosecutor does not certify that there is anything concealed or false, even before the trial is over; but there is no doubt at all that he cannot be released on bail at an earlier stage (if committal ensues) when he was not on bail at the time he was tendered the pardon and accepted it. Usually, a Sessions Court releases an approver in a murder case after the whole trial is over, and the verdict is given and judgment delivered, because only at that stage can it be seen whether the approver's evidence has been a full and true disclosure, of all the facts he knows, or not.". It is on the principles mentioned above that it has been considered necessary by the Legislature in their wisdom: to provide for the detention of art Approver in custody till the conclusion of the trial.

3. Since the approver is a witness until the trial concludes and has ceased to be an accused, sections 496, 497 and 498, Cr. P. C., will have no‑ application in his case as all these provisions are invoked in the case of an accused person. Even otherwise sections 496, 497 and 498, Cr. P. C., the only sections which govern the question of bail, cannot be invoked because of a clear prohibition on grant of bail to approvers as contained in section 337(3), Cr. P. C. All the Courts have decided unanimously that sections 496, 497 and 498 have no application to the question of grant of bail to an approver and that an approver cannot be released on bail during the pendency of trial. In this regard the following authorities may be referred (1) Shah Din v. The State and another P L D 1963 Lah. 342. (2) Abdul Sattar v. The State P L D 1966 Lah. 549. (3) Yasin v. Government P L D 1958 Azad J & K 46. (4) Kundan Lal and others v. Emperor A I R 1931 Lah. 353. (5) In re : Khairati Ram A I R 1931 Lah. 476. (6) Mahomed Abdul Majid v. Emperor A I R 1927 Sind 173. (7) A. L. Mehra v. The State A I R 1958 Pb. 72. (8) Allauddin and others v. The State 1968 P Cr. L J 92. (9) In re : Dagdoo Bapu A I R 1922 Bom. 177. (10) Karuppa Sarvai v. Kundaru alias Muniandi Thevan A I R 1952 Mad.

833. Even in the cases referred to in the referring order both the learned Judges have been unanimously of the view that an approver cannot be granted bail by virtue of what is contained in section 337(3), Cr. P. C. Both of them have also held that sections 496 to 498, Cr. P. C., have no application for grant of bail in the case of an approver.

4. The only point of difference between the two learned Judges is that according to the view taken by Mr. Justice Shaukat Ali in Criminal Miscellaneous No. 3692 of, 1966 the High Court can grant bail by exercise of power vesting in it under section 561‑A, Cr. P. C., despite the prohibition contained in section 337(3), Cr. P. C., on the exercise of power to grant bail. We have considered the view of our learned brother and we are in respectful disagreement with him. 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 supple mental power conferred on the High Court to fill up vaccums 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. The first case on the subject to which we shall refer is Lala Jairam Das and others v. Emperor (AIR 1945 P C 94) in which it has been held that section 561‑A, Cr. P. C. confers no powers. "It merely safeguards all existing inherent powers possessed by a High Court necessary to secure the ends of justice." The second case is Hidayatullah Khan v. The Crown (P L D 1949 Lah.21). This is a Full Bench case in which the view taken was as under :‑ "This Court cannot claim to exercise any inherent power to grant bail at any stage of the proceedings. The power must be derivable from the express terms of the Code itself." Their Lordships further said that the provisions which regulate the question of grant of bail contained in the Code of Criminal Procedure are sections 496 to 498, Cr. P. C. The third case on the subject is Gushtasab Khan v. The Crown (P L D 1956 P C 117). This is a case in which again a similar view was taken that provisions contained in section 561‑A, Cr.P.C., cannot be invoked for granting or canceling bail to an accused person. There is yet another case of The Crown v, Khushi Muhammad (P L D 1953 F C 170) in which a similar view was taken. In the case of Mahmud Ali Qasuri v. The Stare (P L D 1963 S C 478) the view taken by their Lordship of the Supreme Court was that "inherent powers of the High Court (section 561‑A) could only be regarded as auxiliary or ancillary powers to make effective orders that could be passed under soma provision of the Code, in the interest of justice".

5. The position, therefore, is quite clear to us that an, approver cannot be granted bail under section 337(3), Cr.P.C. He also cannot be granted bail under section 49 , 497 and D 498, Cr. P. C. Inherent powers of the High Coin also, in our view, cannot be invoked for granting bail to an approver.

6. Mr. Zaka‑ur‑Rehman Lodhi, the learned counsel for Rehmat Masih, however, contended that there can still be situa tions where refusal to grant bail to an approver would be hard on him and would be against the interests of justice. He argued before us that there may be a case where an approver is in custody and the accused have absconded and there can be no prospect of the trial commencing or concluding. There may also be, according to him, a case where on account of non production of witnesses an approver may unnecessarily be detained for inordinately long time in custody. There may also be cases where the prosecution may conspire to make one of the accused as an approver and then try to protract the proceedings and have him confined in custody, with a view to harass him. We are conscious of these situations. There may be numerous other situations of the similar kind where detention of an approver in custody may amount to a great hardship on him, Merely because detention of an approver has worked on him as hardship, law cannot be circumvented and powers which are not conferred on the High Court cannot be assumed. Law is always made for the general good and not for safeguarding exceptional situations. 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 prosecution can also say that the case is not likely to proceed which would mean that the trial in 1heE case cannot be concluded and as such the condition laid) down in section 337(3), Cr. P. C., being incapable of being fulfilled an approver can go back to his original position of an. accused and apply for bail under sections 496 to 498,1 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. There may be several other methods in which an order for bail, can be obtained but by no means can an approver get bail so long as he continues as an approver on account of an express prohibition contained in subsection (3) of section 337, Cr. Y. C.

7. The reference made to us is consequently answered as under : "An approver if he was in custody at the time when he was granted pardon cannot be granted bail under any provision of the Code of Criminal Procedure on account of prohibition contained in section 337(3), Cr. P. C." S.Q. Reference answered.