P L D 1975 Lahore 1096 (PLP)

This judgment will dispose of the habeas corpus petition filed on the 14th of November 1974 by Mst. Fitrath Ilyas, wife of Ilyas Ahmad Bilor, for bringing the detenu before this Court, so that the Court may satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner. The learned Advocate‑General was summoned the same day to appear and assist the Court. He appeared at 1 p.m. He was given a copy of the petition and the case was taken up at his request at 2 p.m. The Advocate‑General stated that at the relevant time the detenu was not in the Lahore Fort as alleged in the petition and that he had been arrested in connection with the blast at the WAPDA House, Lahore, and he would give further information the next day. The case was accordingly adjourned to the 15th when the Assistant Advocate‑General deputed for the purpose appeared and accepted notice on behalf of the State. He submitted that Ilyas Ahmad Bilor is in police custody as he has been arrested for offences under sections 302 and 436 of the Pakistan Penal Code and sections 4 and 5 of the Explosive Substances Act VI of 1908, in connection with F. I. R. No. 5-8 of 3rd September 1974 pertaining to the WAPDA House blast case. It was further submitted that the arrest has been the result of credible infor mation in the form of transcript of phone tapping of the accused, laid before the police authorities concerned on the 4th of November 1974. It was con tended on behalf of the State that since the arrest has been made in connec tion with a regularly registered case with the police, the custody is not without lawful authority and the writ petition is not maintainable. This objection, learned counsel for the petitioner readily conceded and submitted that now when the State has come forward with the plea of arrest having been made in the course of investigation of a case regularly registered he would not press the habeas corpus petition as such, but in the circumstances of the case the petition may be considered as one for bail. It was argued that the prayer for bail is already included in the petition and, therefore, there should not be any difficulty in considering the petition as one for bail. 2 The learned Assistant Advocate‑General has, however, objected to this course being adopted and has argued that the proper forum for moving a petition for bail is the Ilaqa Magistrate and not this Court and, therefore, while dismissing the habeas corpus petition as not maintainable, the prayer for bail be not entertained direct by this Court. The context in which the matter has come up before this Court requires consideration. It is common ground between the parties that Ilyas Ahmad Bilor has been in the custody of the police from the night between the 2nd and 3rd of November 1974 and, was being interrogated in the Rawalpindi blast case. Criminal Misc. No. 4223/B of 1974 had been moved before this Court by Ilyas Ahmad Bilor for being enlarged on bail and this Court by order dated the 12th of Novem ber 1974 did grant the prayer allowing him bail in the sum of Rs. 50,000 with two sureties in the' like amount to the satisfaction of the Assistant Commissioner, Rawalpindi, with the direction that the accused shall join the investigation if and when required. It is averred on behalf of the petitioner and it has not been denied by the State that Ilyas Ahmad Bilor was brought to the Police Station Tibbi on 13‑11‑74, where be was enlarged on bail and before he could leave the precincts of the Thana, he was re‑arrested and the present proceedings have arisen out of that re‑arrest. The argument on behalf of the petitioner is that the accused has been taken into custody in disregard of the bail order of this Court and rather it had been unfair on the part of the State not to have disclosed before this Court on the 12th of November 1974, when the order of bail was made, that the accused was required in connection with some other case and this has resulted in render ing the bail order of this Court ineffective. It is further contended that the previous bail having been granted by this Court and the matter being already before this Court in habeas corpus proceedings, the bail matter be considered at this stage. The argument on behalf of the State is that this procedure may be abused by some person who may instead of going to the Magistrate or the Sessions Judge file a petition for habeas corpus and then get the same altered into a bail petition and have the bail matter heard by this Court direct and this practice would not be conductive to the ends of justice. In the instant case, however, the facts are quite distinguishable and there has been no resort to the device suggested by the learned Assistant Advocate‑General. The petitioner appears to have been unaware of the arrest having been made in connection with F. I. R. No. 518 of 3rd September 1974 and the circumstances in which the re‑arrest has been made after Ilyas Ahmad Bilor had been enlarged on bail. Further, it was reasonable for the petitioner to move this Court whose orders had been set at naught by re‑arrest. In the special circumstances, I allow the prayer for treating the habeas corpus petition as a bail petition and proceed to dispose of the same as such especially when the jurisdiction for granting bail is concurrent and there is no bar in the way of this Court to entertain a petition for bail direct.

3. Learned counsel for the petitioner has argued that the accused has been in police custody, as already stated above, from the night between the 2nd and 3rd of November 1974, and a large number of persons have been interrogated by the police in connection with the WAPDA House Blast case and as divulged now only five persons have been arrested and the circums tances show that the arrest has been made in a phoney case. It is contended that the accused is not named in the first information report; no information is laid with the police till the 4th of November 1974 when the accused was actually in custody at Lahore; there was no disclosure of this case against the accused when the matter for bail was being considered by the learned Judge of this Court from the 7th of November 1974 and ultimately an order passed on the 12th of November 1974 admitting the accused to bail, it is a fit case for enlarging the accused on bail. It has been next contended that the arrest having been made under section 54 of the Code of Criminal Procedure, it is necessary for the authorities arresting the accused without warrant to satisfy the Court that credible information has been received or a reasonable suspicion exists of the accused having been concerned in any cognizable offence or his having been so concerned. Emphasis has been laid. on the words "credible information" and "reasonable suspicion". These phrases have been the subject of discussion before various High Courts of British India as also before the superior Courts of Pakistan. In Emperor v. Vimlabai Deshpande (AIR 1946 P C 123) while discussing rule 129(*) of the Defence of India Rules, which reads: "Any Police Officer... may arrest without warrant any person whom he reasonably suspects of having act. . ." It was laid down that under rule 129 any Police Officer can arrest on mere suspicion, but the suspicion must be reasonable and the burden is on the Police Officer to prove to the satisfaction of the Court before which the arrest is challenged that he had reasonable grounds of suspicion. The next authority relied on is Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373) at page 389, Cornelius, C. J. while referring to rules 32 and 204 of the Defence of Pakistan Rules observed: "The ascertainment of reasonable grounds is essentially a judicial or at least a quasi judicial function ...." To the same effect are In re: Charu Chandra Majumdar (A I R 1917 Cal. 253), S. Chandra Roy Choudhuri v. Emperor (A T R 1925 Cal. 278) and Saindino Jakhro v. Emperor (A I R 1934 Sind 197).

4. To these arguments the learned Assistant Advocate‑General replies, that credible information has to be a bona fide belief. Reference is made to K. V. Muhammad v. C. Kannan (A I R 1943 Mad. 218). It is argued that some information was received by the police authorities on the 4th of November 1974 which was bona fide believed to be credible and the arrest has been made and, therefore, no question of absence of ingredients of clause (1) of section 54 of the Code of Criminal Procedure arises. Learned counsel for the State has next referred to State v. Muhammad Akbar (P L D 1966 S C 432) at page 437 wherein the discussion is in respect of the power of a private citizen to arrest as compared with that oft a Police Officer and the distinction brought out is: "The differential power expressly given by section 54 to a Police Officer to act on reasonable suspicion of things not actually seen by him, would by itself appear to stand in the way of any attempt to enlarge the power to a private person under section 59." The next authority cited is Devi Dayal v. Emperor (A I R 1929 Lab. 720) which relies on an earlier decision Koda v. Empress (7 P R 1882 (Cr.)). This is a case under the public Gambl ing Act and the Magistrate had raided a house where he found therein in struments of gaming and a Nal (a wooden box containing some money) and the words `credible information' have been held to include `any information which in the judgment of the officer to whom it is given, appears entitled to, credit in the particular instance and which he believes and it need not be sworn information"

5. Learned counsel for the petitioner has no cavil with the proposition of law laid down in the authorities referred to by the learned Assistant Advocate‑General. It is urged on behalf of the petitioner that the circums tances of the case show that there has been no credible information, or reasonable suspicion and the events already referred to in detail in the earlier part of the judgment go to show that it is a fit case for admitting the accused to bail.

6. I have considered the arguments advanced at the Bar and the cir cumstances leading to the arrest. Because the case is still under investigation by the police, without being considered to have expressed any opinion on the merits of the case, I find that the accused had been admitted to bail by this Court on the 12th of November 1974 in a similar case of blast at Rawalpindi and is materially not different from the present accusations against him. The mere fact that section 302 of the Pakistan Penal Code has been added in the first information report in the instant case will not be sufficient to deny the accused the right to be enlarged on bail, especially when the accusations in the form of transcript of tapping of the telephone of the accused and other persons are uncertain and `reasonable grounds are not to be confused with mere allegations of suspicion' (Nisar Ahmad v. State (P L D 1971 S C 174) ). I allow the petition for bail under section 497/498, Cr. P. C. and direct that Ilyas Ahmad Bilor be enlarged on bail in the sum of Rs. 50,000 (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the Assistant Com missioner, Lahore. The accused will, however, join the investigation as and when required by the police.

7. Before parting with this case, it may be added that I have enquired 'from the learned Assistant Advocate‑General whether the accused is required under any other criminal case, which is pending against him. He has stated that as per his information for the present there is no case pending but this information is incomplete and he is not in a position to make a categorical statement till such time he is able to contact the D. I. G. (Crimes) who is out of station, at this moment. K. M. A.