P L D 1962 Supreme Court 495 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal, by special leave, arises out of the judgment and order of a Division Bench of the High Court of West Pakistan refusing to grant bail to the appellant hereinafter an appeal against his acquittal had been admitted for hearing. The appellant was tried along with four others in respect of charges under sections 302/149, .307/149 and 148 of the Pakistan Penal Code by the Additional Sessions Judge of Lahore who, after a protracted trial, delivered an elaborate and considered judgment running into some 71 pages finding all the five accused persons not guilty in respect of all the three charges against them. It was against this acquittal that the State preferred an appeal on the 2nd of June 1962. This appeal was admitted for regular hearing on the 21st of June 1962, by the following order "Having heard the learned Advocate‑General, we are of the opinion that the reasons given by the learned Additional Sessions Judge for rejecting the evidence of Mukhtar Ahmad P. W. 29, who is prima facie an independent witness, require further consideration. We accordingly admit the appeal to a regular hearing. Non bailable warrants returnable to the District Magistrate, Lyallpur, to issue against all five respondents. Notice." It appears from the judgment of the High Court that on this occasion too ; although the accused were not represented in Court ; an oral request was made on their behalf for bail, but the same was refused. On the next day, therefore, a formal application was filed on behalf of the present appellant and three others for the grant of bail. This was heard on the 25th of June 1962, even though up to this date none of the accused persons had either been arrested or had surrendered or were produced in Court. The High Court, however, did not choose to insist on their surrender before taking up the application for hearing, in spite of the fact that an objection was specifically taken by the State on that account relying on a decision of the Federal Court in the case of The Crown v. Khushi Muhammad (P L D 1953 F C 170). It preferred to base its order rejecting the bail application on the ground that since one of the offences alleged was under section 302/149 of the Pakistan Penal Code and it was a non bailable offence, bail should not be granted, as the "normal practice" of the said Court was not to grant bail in the case of such offences except in exceptional circumstances and for special reasons. The learned Judges constituting the Division Bench hearing the application were furthermore, to quote their own words, "not satisfied that reasons exist which should impel dig to depart from the normal practice and to allow bail." It is against this order that the appellant alone has come up before this Court and it is urged on his behalf that the alleged "normal practice" relied upon by the High Court has neither any legal basis nor is it the invariable practice of the said Court. Learned counsel appearing on his behalf contends that the appropriate provision o: law governing the grant of bail ‑to a respondent m an acquittal appeal is section 427 of the Criminal Procedure Code which gives a wide discretion to the Court, for, according to him, a. person acquitted by a competent Court after full trial stands on an entirely different footing from a person who is either facing trial or has been convicted. In so far, therefore, as the High Court had relied merely upon the heinousness of the offence alleged and its so‑called "normal practice", it had, it is urged, failed to exercise the discretion vested in it by section 427 of the Criminal Procedure Code upon sound judicial principles having regard to the facts arid circum stances of this particular case. Learned counsel for the appellant has further sought to contend that even if it be held that the principles governing the grant of bail under sections 496 and 497 of the Criminal Procedure Code are applicable to such cases, the High Court has under section 498 thereof still a discretion to direct that any such person should be admitted to bail. The learned Assistant Advocate‑General appearing on behalf of the State has on the other hand, maintained that section 427 is merely an enabling section, which is controlled by sections 496 and 497, which set out the principles upon which bail can be granted, particularly, since an appeal is nothing more than a continuation of the trial. Alternatively, he contends that even if section 427 of the Criminal Procedure Code be held to be independent of sections 496 and 497, the principles of the latter should be taken as the guiding principles in such matters, and upon such principles the High Court was fully justified in refusing bail having regard to the heinousness of the offence alleged and the fact that another Division Bench of the same High Court had already held, by admitting the appeal against acquittal, that there was a prima facie case against the appellant. This, at any rate, it is said, raised a presumption that there were reasonable grounds for believing that the appellant has been guilty of an offence punishable with death or transportation for life and, therefore, could not be enlarged on bail. Before entering upon an examination of the above,, arguments it is necessary to mention that the failure of the appellant either to surrender or to appear before the Court at the time of the hearing of the bail application has also been relied upon by the State as a circumstance which disentitled the appellant even from asking for bail. In support of this contention reliance has been placed on two decisions of the Federal Court of Pakistan in the cases of The Crown v. Khushi Muhammad and Chat Shah v. The Crown ((1955) 2 FCR 8 = PLD 1956 FC 43). The High Court has referred only to the first‑mentioned decision and has possibly taken the view that since, admittedly on the 2nd of June 1962, a non‑bailable warrant had been issued by the High Court against the appellant, that was a sufficient form of restraint entitling the person so restrained to ask for bail. It may, however, be pointed out that even in the said decision the, learned Chief Justice observed at page 138 that "in the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself." It is not understood, therefore, why the surrender of the appellant was not insisted upon. The principles laid down in the case of Chan Shah, however, could have left no room for doubt, for, as therein emphasised, "it is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice" and, as such, when the appellant himself was "engaged in setting that judicial order at naught", namely, the non‑bailable warrant issued on the 2nd of June 1962, the High Court would have been entirely justified in refusing to entertain the bail application until the appellant had submitted to the due process of justice. But since the High Court itself did not choose to adopt this course, it cannot be set up at this stage as a ground for supporting its order in this Court, particularly, since the appellant was throughout present in this Court during the hearing of this appeal. Reverting now to the main arguments advanced before us we propose to examine them in some detail, since this appeal raises an important question, namely, as to what should be the principles which should govern the grant of bail to a respondent in an appeal against acquittal. The relevant provisions of law which fall to be considered in this case are :

"Section 427.‑When an appeal is presented under section 411‑A, subsection (2), or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail. Section 497 (1).‑When any person accused of any non bailable offence is arrested or detained without warrant by an officer in charge of a police‑station, or appears or is brought before a Court, he may be released on bail, 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 transportation for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. Section 498.‑The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive ; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police‑officer or Magistrate be reduced." It will be observed that even under section 497 (1) ins the case of an offence punishable with death or transportation for life 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. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is B not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists. Subsection (2) of the said section, on the other hand, comes into application where the investigation, inquiry or trial has already commenced and in the course thereof the accused has come to be in a position to satisfy the Court that there are no reasonable grounds for believing that he has committed the offence alleged and if he so succeeds in satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined thereunder that the Court shall enlarge him on bail even if it is of the view that there still are sufficient grounds for further inquiry into his guilt. If, as contended on behalf of the State, the principles of sections 496 and 497 are to be applied also to cases of persons already tried and acquitted treating the appeal against acquittal as a continuation of the trial, then logically subsection (2) of section 497 would be attracted and the accused would legitimately be entitled to urge that, upon his acquittal he had been able to satisfy the Court that there were no reasonable grounds for believing that he had committed any such offence, for, the acquittal not only strengthens the pre sumption of innocence but also negatives the existence of any reasonable ground for believing the accused to be guilty. This obviously could not have been the intention of the Legislature. Again even though an appeal is in a sense a continuation of the trial and in an appeal against acquittal under section 417 of the Code of Criminal Procedure the High Court has full power to review at large the evidence upon which the order of acquittal is founded in order to come to its own independent conclusion upon that evidence, yet as observed by the Privy Council in the case of Sheo Swarup v. King Emperor (L R 61 IA 398) "before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters, as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The authority of this decision has been affirmed on more than one occasion by this Court. It imposes restraints upon the freedom of discretion of the appellate Court, to which the trial Court was not subject. It, therefore, appears to us that sections 496 and 497 were not intended to control section

427. Indeed, as observed in the case of Lala Jairam Das and others v. Emperor (LR72IA120=AIR 1945 PC 94) "the only granting of bail which is referred to in that Chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted' or, we would like to add, acquitted. The reasons, which impelled their Lordships of the Judicial Committee to hold in the said case that section 426 was the only provision in the case which refers to the grant of bail to a convicted person, apply with equal force to the case of an acquitted person, for, section 427 is also a specific provision in the Code under the Chapter of Appeals (Chapter XXXI) and is the only section in the Criminal Procedure Code which refers to the grant of bail to a person against whose acquittal an appeal has been presented. We would also respectfully adopt the arguments of their Lordships of the Judicial Committee in the said case for holding that section 498 has no reference to acquitted persons, for, it is merely ancillary to sections 496 and

497. The question that next arises is that if section 427 is an independent section governing the grant of bail to an acquitted person, against whose acquittal an appeal has been admitted for hearing, then what are the considerations which should be taken into account by the Court in properly exercising its discretion under the said, section. We may state straightway that where Court is called upon to exercise its Judicial discretion, it will not be discharging its function properly if it Were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transporation for life is alleged bail must as a matter of course be refused nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there a two cases in which the facts are alike. To act upon a rule of practice may, therefore well constitute an arbitrary exercise of power, for, the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heinous of the crime allege afire, no doubt, very relevant circumstance to be taken into consideration, but by themselves they are not the circumstances, as we have endeavoure point out even under section 496 and 497. what further considerations should be taken into account by the Court in deciding this question must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down. There may well be a variety of other circumstances of greater or less importance which may properly be taken into con sideration but we do not wish to enter upon any exhaustive examination of such matters, since, in our view; it is neither possible nor desirable to do so. It will be sufficient, however, to indicate that the possibility of the respondent in such an appeal against acquittal absconding or tampering with witnesses or hindering the prosecution of the appeal are some of the con siderations which the Courts have considered relevant for this purpose. We are not unmindful of the importance of preserving the power of Courts to be able to act .in such a manner as to ensure that they are not hampered in dispensing justice or that their final order, whatever it may be, can be effectively carried out. But we cannot help observing that it is equally important that no person should be deprived of his liberty or denied the oppor tunity to look after his own case, except for sufficient and cogent reasons. Thus where the accused person is capable of absconding or of tampering with witnesses, the maximum restraint may well be justifiably imposed. But in the case of the appellant before us, we are informed, steps have already been taken to obviate the risk of his absconding by impounding his Passport. In so far as the other risk is concerned, it appears to be too remote, for, the calling of witnesses at the appellate stage is confined to exceptional cases. It follows, therefore, that in this case full weight may properly be given to the factors enumerated in Sheo Swarup's case in considering whether bail should or should not be granted to the appellant. The High Court, it appears, was influenced in refusing the bail upon only two considerations, namely, (1) that the charges included an offence punishable with death and (2) the "rule of practice" of the High Court not to grant bail in such cases except for special reasons and in exceptional circum stances. . This "rule of practice", we gather, is not invariable, and rightly so, for, the law, as worded; is clearly designed to give the fullest discretion to the Court. That discretion cannot be fettered by any "rule of practice". There is, furthermore, no allegation of any kind whatsoever that any other circum stance, apart from the heinousness of the crime alleged, exists, which might justifiably betaken into account, nor was any such matter placed before us at the hearing. So far as the charge of murder is concerned, we have said enough to indicate that even if there had been no acquittal, this fact would by itself have not been an insuperable bar to the grant of bail. For these reasons we allow this appeal and direct that the appellant be enlarged on the bail already granted to him by the ad interim order made on the 9th of July 1962. In dealing with this question of bail we have advisedly refrained front either adverting to or making any observation as to the nature of the evidence in this case or as to the quality of the judgment of the Additional Sessions Judge lest our comments, one way or the other, should prejudice either side in the appeal against acquittal pending in the High Court. A.H. Appeal allowed.