P L D 1961 (W (PLP)

ORTCHESON, J.‑The facts of this case are that one Shafaat Ahmad was tried by the learned Additional Sessions Judge, Lahore, on charges under sections 363, 377 and 302 of the Pakistan Penal Code and acquitted. The State filed an appeal against the acquittal under section 417, Criminal Procedure Code. It was heard at a preliminary hearing by a Division Bench as Criminal Appeal No. 186 of 1960 and after hearing the learned Assistant Advocate‑General the learned Judges issued notice to the accused‑respondent to show cause why the order of his acquittal be not set aside. They also directed that non‑bailable warrants returnable to the District Magistrate, Lahore, be issued.

2. In execution of the above order Shafaat Ahmad was arrested and later filed an application (Criminal Miscellaneous No. 810 of 1960) for bail. The application was heard by another Division Bench, consisting of Shabir Ahmad. J. and J. H. Rizvi, J. and on the Ist of November, 1960, the following order was passed "We are not prepared to grant bail. The learned counsel for the petitioner, however, raises the point that the order of the Bench which admitted the appeal, with regard to the issue of non‑bailable warrants, is not warranted by the provisions of section 427 of the Code of Criminal Procedure. The point does not appear to be without force, but as orders in the form in which the order was passed in the present case appear to have been passed for a number of years, we would like to bear the Advocate‑General, West Pakistan, before expressing a consider (sic) opinion on the point. Let a notice be sent to the Advocate‑General, West Pakistan," The case has now come up before us.

3. Section 427 of the Code of Criminal Procedure runs as follows :‑ "When an appeal is presented under section 411‑A, sub section (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." Although the legality of the order directing the non‑bailable warrants returnable to the District Magistrate, Lahore, be issued was not challenged in the written grounds adduced in support of the application for bail, the argument appears to be that if this Court has issued a warrant directing that the accused be arrested and brought before any subordinate Court, it is that Court, and not the High Court, which is to exercise its discretion as to whether to commit the accused to prison or admit him to bail. I have carefully considered the objection, and am of the opinion that it cannot be sustained.

4. Section 76 (1) of the Criminal Procedure Code lays down that any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. Section 81 provides that the police officer or other person executing a warrant of arrest shall (subject to the visions of section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person. Section 427 does not stand in isolation, but is to be read along with the other provisions of the Code relating to the arrest of an accused, and section 76 confers discretion in the matter of refusing or granting bail only on the Court issuing a warrant. It is particularly to be noted that section 427, while granting the subordinate Court before which the accused is brought the power to commit the accused to prison or admit him to bail, does not use the words "in its discretion" occurring in section 76 (1). In my opinion, the only reason why section 427 confers the above power on the subordinate Court is to enable it to carry out the orders of the High Court. In Abdool Kadir Khan v. The Magistrate of Purneah (20 Suth. W. R. Cr. 23), it was held that a prisoner arrested under a warrant should be brought promptly before a Magistrate, who has then no authority further to detain him in custody or to remand him to prison without some reason made manifest to him, either in the shape of sworn testimony given before him, or in some other form which can be put upon the record, and which is sufficient to justify him in sending the prisoner to prison. Unless, there fore, section 427 .contained the provision in question, the sub ordinate Court before which the accused is produced would without embarking on our independent enquiry, have no authority either to commit him to prison pending the disposal of the appeal or to admit him to bail, and it appears to me to be obvious that the said provision was not intended to override section 76 of the Code, under which the discretion to issue a non‑bailable. or bailable warrant vests only in the Court by which the warrant 6 is issued. If any other interpretation were to be placed on section 427, it might lead to the paradoxical result that in a case where this Court ordered a non‑bailable warrant to issue, return able to a subordinate Court, that Court would have the power to disregard such order and admit the accused to bail.

5. To sum up, I am of the view that object of section 427 of the Criminal Procedure Code is, on the one hand to avoid the inconvenience that would be caused to the accused by bringing him from some distant place to the High Court and on the other, to make it clear that despite the interpretation placed in Abdool Kadir Khan's case, referred to above, on the section of an old Code corresponding to the present section 81 (which interpretation has, so far as my knowledge goes, never been dissented from) the subordinate Court has power to carry out the order of the High Court by either committing the accused to prison or admitting him to bail, as the case may be.

6. I, therefore, hold that the order of this Court that a non‑bailable warrant returnable to the District Magistrate, Lahore, C be issued was perfectly legal and complied fully with the requirements of section 427 of the Code of Criminal Procedure. Further, the order of Shabir Ahmad and Rizvi, JJ. cited in para graph 2 above makes it clear that on the merits the learned Judges were not prepared to grant bail. I would accordingly dismiss the bail application. HABIBULLAH, J.‑I agree. K. B. A. Petition dismissed.