P L D 1952 Lahore 253 (PLP)

MUHAMMAD JAN, J.‑On 10th January, 1952, a petition for cancellation of bail before arrest granted to Malik Muhammad Bashir by the Additional Sessions Judge, Lahore, was placed before me. It was stated in the petition that Muhammad Bashir, accompanied by Nasir and Ashraf, trespassed into the house of Muhammad Naseem, a Matriculation student, where Asaf Ali, a 1st year College student, was also present. Muhammad Bashir and Nasir threatened the petitioner Asaf Ali with open knives in order to make him submit to an unnatural offence. Asaf Ali resisted and was injured. On hearing a hue and cry, some neighbours arrived whereupon Muhammad Bashir and his companions ran away. On turning to the order of the Additional Sessions judge, dated 26th December 1951, I found that Muhammad Bashir was accused of offences under sections 324 and 452 P. P. C. The petition for cancellation of bail showed that he was accused of two other offences also, i.e. offences under sec tions 450 and 355 P. P. C. Offences under sections 324 and 355 are bailable, the other 'two are not. The only reason given by the Additional Sessions Judge for allowing bail before arrest to Muhammad Bashir was that the injuries alleged to have been inflicted by him were reported to be simple. This was obvious, because the offence of which he was accused for causing injuries was under section 324, P. P. C. The Additional Sessions judge took no notice of the offence under section 452 P. P. C. which was not bailable. The con duct imputed to Muhammad Bashir was that of a goonda. I did not consider it a fit case for bail and, in exercise of the revi sional jurisdiction of the High Court, I set aside the order of bail passed by the Additional Sessions Judge. On the next day, i.e., 11th January 1952, Malik Shaukat Ali, Advocate, presented to me a petition for bail on behalf of Muhammad Bashir. He said that the matter was very urgent because the police were out to arrest his client who belonged to a respectable family, being the nephew of the late Malik Barkat Ali, Advocate, and a business man of repute who had done 'work worth more than five lakhs of rupees for the Go vernment during the last two years. He further stated that the petitioner was a candidate for election to the Lahore Corpora tion and the case brought against him was false and instigated by certain interested persons to ruin his prospects of election. He added that the complainant Asaf Ali had admitted in the presence of several persons that he had made a false report against the petitioner. He filed affidavits of Muhammad Naseem and his father Muhammad Ismail, in whose house the offence was alleged to have taken place, swearing that no such offence had taken place in their house. Two more affidavits were filed to show that the accusation against the petitioner Muhammad Bashir was false, that the injury of Asaf Ali com plainant was self‑inflicted and 'that he had admitted before several witnesses that he had made a false report against the petitioner in order to prejudice him in the election. It was also pointed put to the that in the F.I. R. Asaf Ali had said that the knife placed on his abdomen had just "moved" and not that he had been stabbed. The injury statement prepared by the police showed only a scratch on the abdomen and not a stab wound. In view of the facts 'mentioned above and the averments in the petition and the affidavits, I issued notice to the opposite party and allowed interim bail to Muhammad Bashir. Argument were heard on the 14th instant. The learned A. A. G. appearing on behalf of the Crown and Mr. Jamil Hussain Rizvi appearing on behalf of the complainant Asaf Ali, relied on the Full Bench case Hidayatulla Khan v. Crown P L D 1949 Lah. 21 in support of their contention that bail before arrest can be granted by the High Court only in cases where not only a good prima facie case for bail has been made out but it also appears that if the petitioner is arrested and refused bail such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case but from some ulterior motive and with the object of injuring the peti tioner, or that the petitioner would in such an eventuality suffer irreparable harm. This, indeed, is the language used by Cornelius J. in delivering the Full Bench judgment; but, the observations do not point to any statutory provision of law. At page 25 of the above‑mentioned Report, it is said that the High Court has no inherent powers, apart from those expressly men tioned in the Criminal Procedure Code, to grant bail in cases falling under that Code. This dictum was taken from the Privy Council judgment In re. Jairamdas v. The King Emperor A I R 1945 P. C. p. 94 where it was held that Chapter XXXIX and section 426 of the Code of Criminal Procedure contain a complete and exhaustive statement of the powers of a High Court in India to grant bail and exclude the existence of any additional inherent powers relating to the subject of bail. In considering the provisions of the Criminal Procedure Code 'relating to bail, it was observed by Cornelius J. that under section 498, Criminal Procedure Code, the High Court had the power to direct that any person be admitted to bail and that, giving these words their full weight, there was no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of any inferior Court or of a police officer but also includes the power to give directions that persons should be admitted to bail who are not in custody. It is clear, therefore, that in the opinion of the learned judge the High Court had been given the power to grant bail before arrest by section 498, Criminal Procedure Code, and there are no limitations, such as those laid down in the judgment, in section 498, Criminal Procedure Code. If the view taken by the Privy Council in Jairamdas v. The King Emperor must prevail, that the scheme of Chap ter XXXIX, Criminal Procedure Code, is that sections 496 and 497 provide for the granting of bail to accused persons before M trial and the other sections of the chapter deal with matters ancillary or subsidiary to that provision, then too there are no restrictions such as those laid down in the Full Bench judg ment in sections 496 and 497, Criminal Procedure Code, I may mention in. passing that, so far as I can see, the provisions of sections 496 and 497 are not restricted to the grant of bail to accused persons before trial only: Section 496 says that if a person accused of a bailable offence is prepared to give bail at any time while in the custody of a police officer or at any stage of the proceedings before a Court, he shall be released on bail : and section 497 clause (2) empowers the police offi cer or the Court to grant bail at any stage of the investigation, inquiry or trial. Sections 496 and 497, Criminal Procedure Code, provide, in my opinion, for bail both before and during the trial. The only restriction imposed in section 497, Criminal Procedure Code, on the power to grant bail is that an accused person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence pun ishable with death or transportation for life. Even this restric tion is relaxed by the proviso to clause (1) of section 497, Criminal Procedure Code, which enables the Court to allow bail to any person under the age of 16 years or any woman or any sick or infirm person, accused even of an offence punishable with death or transportation for life. The restrictions contained in the Full Bench judgment are not to be found in any provision of the Criminal Procedure Code, and if enforced would, for al practical purposes, take away the power held by the Full f Bench Hidayatullah Khan v. Crown to have been given to the High Court and the Court of Session by law. It was urged that the restriction contained in the judgment that if the petitioner is arrested and refused bail such an order would in all proba bility be made not. from motives of furthering the ends of justice in relation to the case but from some ulterior motive and with the object of injuring the petitioner lays stress on the order which is, passed for the arrest of the accused or whereby bail is refused. Such orders can be made either by police officers or by Courts and it is easy to think of cases in which the public servant concerned may not be acting from any ulterior motives or with the object of injuring the petitioner, but may have been placed under the obligation of acting in a manner injur ious to the petitioner by a person making a false report, In such, a case the public servant would be acting in a perfectly bona fide manner and in the honest discharge of his duty ; and the person falsely accused would have no right of redress. The alternative condition that the petitioner should be able to show that if he is arrested and refused bail, he would suffer irrepar able harm, is just as hard as the other. It can be said that every one who is found innocent and acquitted after trial suffers irre parable harm by arrest, detention and trial. But, the machinery of law would stop if no man is arrested for fear of his ulti mately being found to be innocent. The indignity and the humiliation of arrest and detention may therefore not be treated as irreparable harm. Cases can be imagined where in order to disgrace a man, a false report of a non‑bailable offence, bols tered by some false evidence, is made against him and the police, acting in the honest discharge of duty, put the man under arrest. Incalculable harm may be done to him before it is found by investigation or after trial that the report was false and the punishment of the false informer may never retrieve that harm. The power to give relief in such cases must, in the in terests of justice, be exercisable by the High Court and A the Courts of Session. The restrictions contained in the restrictions contained in the Full Bench judgment appear to me to be in the nature of guidance for the regulation of the Court's discretion in granting bail before arrest and were not intended to be rigidly adhered to in every case. Recently, the view taken in Hidayatullah Khan v. Crown has been dissented from by a Division Bench of the Sind Chief Court in Muhammad Abbas and others v. Crown P L D 1950 Sind p. 80 and a Full Bench of the East Punjab High Court in Amir Chand and another v. Crown A I R 1950 East Pb.

53. The case of Muhammad Abbas and others v. Crown was referred by Tyabji, C. J., to 'a Division Bench in view of the decision arrived at in Hidayatullah Khan v. Crown. In delivering the main judgment of the Bench the learned Chief judge held that bail means setting at liberty a person arrested or imprisoned, on security being taken for his appearance, and that it was incorrect to speak of admitting any person to bail unless and until he was in custody. Constantine J. took the same view and held that the words "admitted to bail" imply that a person has been arrested or an order for his arrest has been issued. In the East Punjab case, Amir Chand and another v. Crown, Das C. J. in his order of reference observed that the power to grant anticipatory bail may be useful and desirable but the Court cannot arrogate to itself such power if the Legislature has not thought fit to give such power to the Court ; and the question formulated by him for the decision of the Full Bench was: , "Whether section 498, Criminal Procedure Code, empowers the High Court or the Sessions Court to grant bail to a person who has not been placed under restraint by arrest or other wise"? Khosla J., in delivering the main judgment of the Full Bench, said that the very notion of bail presupposes some form of previous restraint and bail cannot be granted to a person who has not been arrested and for whose arrest no warrants have been issued. In the case of a person who has not been arrested but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself. The question referred to the Full Bench by the Chief Justice was answered in the negative. In view of the conflict of opinion between the Lahore High Court and the Sind Chief Court, the Advocate‑General, Punjab applied for special leave to appeal to the Federal Court from an order of Kayani J. on the petition of one Khushi Muhammad for release on bail before arrest "pending investigation and trial if any". The order of Kayani J. on this petition is that if it is intended to arrest the petitioner he should be released by the District Magistrate if a bail bond is furnished to his satisfac tion. The order of the Federal Court granting leave to appeal, owing to the divergence of opinions expressed by the High Court at Lahore and the Chief Court of Sind, shows that one Mian Muhammad Sadiq had lodged a report at Police Station Khudian against Khushi Muhammad and some others for offences under sections 363 and 366 of the Pakistan Penal Code. The police had started investigation but had not arrested the accused Khushi Muhammad when he made the application for release on bail and obtained the order mentioned above. In my opinion, the conflict of views above‑mentioned cats be avoided and the liberty of the subject can be safeguarded by couching the prayer for bail and the order of the Court in suitable words. Considering that the object of detention pending trial is not to punish the accused for the offence with which he is charged but to secure his attendance at the trial. I am inclined to allow bail to the petitioner in this case and order that if the petitioner Malik Muhammad Bashir is arrested in pursuance of the report made by Asaf Ali at Police Station Kotwali Lahore (F. I. R. No. 494 dated 29th November, 1951) he shall be immediately admitted to bail on furnishing security to the satisfaction of the arresting authority, who will take case that the amount of security demanded shall be fixed with due regard to the circumstances of the case and shall not be excessive. A. H. Bail allowed.