P L D 1995 Supreme Court 34

Present: Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ

TARIQ BASHIR and 5 others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 56-K of 1994, decided on 31st August,
1994.
(On appeal from the order of High Court of Sindh at Karachi, dated 5-7-1994 passed
in Criminal Bail No.265/1994 (Kar.) 117/1994 (Hyd.)).
(a) Criminal Procedure Code (V of 1898)---
----Ss. 496 & 49'7---Bail---Grant of bail in bailable offence is a right while in non-
bailable offences the grant of bail is not a right but concession/grace---Grant of bail
in offences punishable with imprisonment for less than ltl years is a rule and refusal
an exception---Exceptional and extraordinary cases whore bail is declined in oases
of offences punishable with imprisonment of loss than ten years enumerated.
In bailable offences the grant of bail is a right and not favour, whereas in non-
bailable offences the grant of bail is not a right but concession/grace. Section 497,
Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable
with death, imprisonment of life or imprisonment for tee years; and (ii) offences
punishable with imprisonment for loss than ten years. In non-bailable offences falling
in the second category (punishable with imprisonment for less than ten years) the
grant of bail is a rule and refusal an exception. So the bail will be declined only in
extraordinary and exceptional cases for example ---
(a) where there is likelihood of the abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution
evidence;
(c) where there is danger of the, offence being repeated if the accused is released
on bail; and
(d) whore the accused is a previous convict.
(b) Criminal Procedure Code (V of 19138)---
----S. 497---Bail-_-Under-trial accused of bailable. offences---Remand on failure to
furnish surety/bail bond---H I,=-in bailable cases while remanding the accused to jail
on his failure to furnish surety/ail bond, Trial Court should consider the propriety of
his release on execution of personal bond and not only the fist ardor of judicial
remand but also oath subsequent ardor must show that the Court had really
considered the propriety of his release on personal bond.
Many under-trial accused of bailable offences and preventive offences i.e.- offences
under suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails for want of
surety bonds although they, at the discretion of the Court, could be released on
execution by chum of bond (personal bond) without surety for their appearance
before the Court, Even in petty cases the Courts/subordinate Courts remand the
accused to ,jail on their failure to produce sureties with the result that hundreds of
under-trial accused who could have easily been released on personal bond are
ratting in the jail for a long time. Supreme Court, therefore, directed that in bailable
cases while remanding the accused to jail on his failure to furnish surety/bail bonds,
the trial Court shall consider, the propriety of his release on execution of personal
bond. Not only the first order of judicial remand but also each subsequent order
must-show that the Court had really considered the propriety of his release on
personal bond. Instead of being severe to an under-trial accused carrying
presumption of innocence with them, it is bettor that the Court should be lenient in
the matter-of bail, food and medical facilities.
(c) Criminal Procedure Code (V of 1898)-._
_--S. 497---prisons Act (IX of 1894), S.32__Bail-- Under-trial prisoner---Accused in
bailable offences, potty offences and offences punishable- with imprisonment for
less than 10 years should not unnecessarily be detained in the jail---Under-trial
prisoners are entitled to have clothes and food privately under 5.32; Prisons Act,
which facilities are to be liberally provided to them till they are convicted.
Under section 32 of the Prisons Act, an under-trial prisoner is entitled to have
clothes and food privately. These facilities should liberally be provided to them till
they are convicted. The jails are over-crowded. The detention of under-trial
prisoners, food and medical facilities and their transportation from jail to the Court
heavily burden public exchequer. It would be in consonance with the law of bail and
in the fitness of things that accused in bailable offences, petty offences and offences
punishable with imprisonment for less than ten years should not unnecessarily be
detained in the jail.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Accused of offences punishable with death, or imprisonment for
life, or for ten years---Grant/refusal of bail to be determined judiciously having regard
to the facts and circumstances of each case---Provisions of 5.497, Cr.P.C. are not
punitive in nature as regards offences punishable with death; or imprisonment for
life, imprisonment for ten years, for there is no concept of punishment before
judgment in law---Where the prosecution satisfies the Court that there are
"reasonable grounds" to believe that the accused has committed the crime falling in
category of offences punishable with death, or imprisonment for life, or imprisonment
for ten years the Court must refuse bail---Where, however, the accused satisfies the
Court that there are no reasonable grounds to believe that he is guilty of such
offence, then the Court must release him on bail---Court, for arriving at any such
conclusion, is not to conduct a preliminary trial/ inquiry but will only make tentative
assessment¬ "Reasonable grounds" mean grounds which appeal to a reasonable
and prudent
man---Guidelines for Courts in disposal of bail cases furnished.--[Words anti
phrases].
As regards offences, punishable with death, or imprisonment for life, or
imprisonment for ten years the provisions of section 497(1) are not punitive in
nature. There is no concept of punishment before judgment in the criminal law of the
land. The question of grant/refusal of bail is to be determined judiciously leaving
regard to the facts and circumstances of each case. Where the prosecution satisfies
the Court, that there are reasonable grounds to believe that the accused has
committed the crime falling in the category of offences punishable with death, or
imprisonment for life, or imprisonment for ten years; the Court must refuse bail. On
the other hand where the accused satisfies the Court that there are not reasonable
grounds to believe that he is guilty of such offence, then the Court must release him
on bail. For arriving at the conclusion as to whether or not there are reasonable
grounds to believe that the accused is guilty of offence punishable with death,
imprisonment for life or imprisonment for ten years, the Court will not conduct a
preliminary trial/inquiry but will only make tentative assessment, i.e., will look at the
material collected by the police for and against the accused and be prima facie
satisfied that some tangible evidence can be offered which, if left unrebutted, may
lead to the inference of guilt. Deeper appreciation of the evidence and
circumstances appearing in the case is neither desirable nor permissible at bail
stage. So, the Court will not minutely examine the merits of the case or plea of
defence at that stage.
The bail order must be carefully balanced and weighed in scale of justice and
requirement of relevant law. Reasonable grounds mean grounds which appeal to a
reasonable and prudent man.
(e) Criminal Procedure Code (V of 1898)---
____s, 497(5)---Bail---Cancellation---Grant of bail and cancellation thereof---
Considerations altogether different---Once bail is granted by Court of competent
jurisdiction, then strong and exceptional grounds would be required for cancellation
thereof.
(f) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---To deprive a person on post-arrest bail of the liberty is a most
serious step to be taken.
.
(g) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Offence allegedly committed by accused punishable with death;
imprisonilpent for life or imprisonment for ten years---Benefit of reasonable doubt
about occurrence itself, identity of-the accused, part allegedly played by accused in
the occurrence, his presence on the spot and all the questions of his vicarious
liability, would go to him at bail stage --- Wherever reasonable doubt arises with
regard to the participation of an accused person in the crime, he should not be
deprived of the benefit of bail, for bail can neither be withheld nor cancelled as
punishment.--[Benefit of doubt].
There is no legal compulsion to cancel the bail of the accused who allegedly have
committed crime punishable with death, imprisonment for life or imprisonment for ten
years. Question of benefit of reasonable doubt is necessary to be determined not
only while deciding the question of guilt of an accused but also while considering the
question of bail because there is a wide difference between the jail life and a free
life. So, benefit of reasonable doubt 'about occurrence itself, identity of the accused,
part allegedly played by him in the occurrence, his presence on the spot and on the
question of his vicarious liability, would go to him even at bail stage. There is a
tendency to involve innocent persons with the guilty. Once an innocent person is
falsely involved in a serious case then he has to remain in jail for considerable time.
Normally it takes two years to conclude the trial. When a person is detained in the
jail, all his dependents also suffer hardships. The ultimate conviction and
incarceration of a guilty person can repair the wrong caused by a mistaken relief of
interim bail granted to him, but no satisfactory reparation can be offered to an
innocent man for his unjustified incarceration -at any stage of the case, albeit his
acquittal in the long run. So, whenever reasonable doubt arises with regard to the
participation of an accused person in the crime, he should not be deprived of the
benefit of bail. The bail can neither be withheld nor cancelled as punishment.
(h) Criminal Procedure Code (V of 1898)--
----S. 497---Bail---One Judge of the High Court on examination of the F.LR.,
statements recorded under S.161, Cr.P.C. and the material collected during
investigation was of the opinion that there were no reasonable grounds to believe
that the accused were guilty of the offence alleged against them---Another Judge of
the same High Court on the same material on record had come to totally different
conclusion that there were reasonable grounds to believe that accused persons had
committed the alleged crime---Held contrary views/opinions of the two Judges of the
same High Court about the guilt of the accused, in circumstances, made out a case
of further inquiry within the meaning of S.497(2), Cr.P.C.
In the present case, one Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, CrP.C. and the material collected during
investigation was of the opinion, that there were no reasonable grounds to believe
that the accused were guilty of the offences alleged against them, whereas on the
same material on record, another Judge of the same High Court had come to a
totally different conclusion that there were reasonable .grounds to believe that the
accused persons had committed the alleged crime. The contrary conclusions arrived
at by the two Judges of the High Court had made the existence of reasonable
grounds to connect the accused with the crime doubtful, entitling the accused to
benefit of doubt at such stage. In any case, the contrary views/opinions of the two
Judges of the High Court about the guilt of the accused had made out a case of
further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.
Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate-¬on-Record for
Petitioners.
Abdul Ghafur Mangi, Additional Advocate-General, Sindh for the State
Date of hearing: 31st August, 1994