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P L D 1995Supreme Court 34

P L D 1995Supreme Court 34

Present: Mir Hazar Khan Khoso and MuhammadMunir Khan, JJ

TARIQ BASHIRand 5 others‑‑‑Petitioners

versus

THESTATE‑‑‑Respondent

CriminalPetition for Leave to Appeal No. 56‑K of 1994, decided on 31st August,1994.

(Onappeal from the order of High Court of Sindh at Karachi, dated 5‑7‑1994passed 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 inbailable offence is a right while in non‑bailable offences the grant of bail is not a right butconcession/grace‑‑ Grant of bail in offences punishable withimprisonment for less than ltl years is a rule and refusal an exception

Exceptionaland extraordinary cases whore bail is declined in oases of offences punishablewith imprisonment of loss than ten years enumerated.

In bailable offences the grant ofbail is a right and not favour, whereas in non‑bailable offences thegrant of bail is not a right but concession/grace. Section 497, Cr.P.C. dividednon‑bailable offences into two categories i.e.

(i) offences punishablewith death, imprisonment of life or imprisonment for tee years; and

(ii)offences punishable with imprisonment for loss than ten years. In non‑bailableoffences falling in the second category (punishable with imprisonment for lessthan ten years) the grant of bail is a rule and refusal an exception.

So thebail will be declined only in extraordinary and exceptional cases for example

(a) where there is likelihood ofthe abscondence of the accused;

(b) wherethere is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the, offence beingrepeated if the accused is released on bail; and

(d) whore theaccused is a previous convict.

(b) Criminal Procedure Code (V of 19138)‑‑‑

S.497‑‑‑Bail Under‑trial accused ofbailable. offences‑‑‑Remand on failure to furnish surety/bailbond

in bailable cases while remanding theaccused to jail on his failure to furnish surety/ail bond, Trial Court shouldconsider the propriety of his release on execution of personal bond and notonly the fist ardor of judicial remand but also oath subsequent ardor must showthat the Court had really considered the propriety of his release on personalbond.

Manyunder‑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 injails 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 suretyfor their appearance before the Court,

Even in petty cases theCourts/subordinate Courts remand the accused to ,jail on their failure toproduce sureties with the result that hundreds of under‑trial accused whocould have easily been released on personal bond are ratting in the jail for along time.

Supreme Court, therefore, directed that in bailable cases whileremanding the accused to jail on his failure to furnish surety/bail bonds, thetrial Court shall consider, the propriety of his release on execution ofpersonal bond.

Not only the first order of judicial remand but also eachsubsequent order must‑show that the Court had really considered thepropriety of his release on personal bond.

Instead of being severe to an under‑trialaccused carrying presumption of innocence with them, it is bettor that theCourt should be lenient in the matter‑of bail, food and medicalfacilities.

(c) Criminal Procedure Code (V of 1898)‑._

S.497‑‑‑prisons Act (IX of 1894), S.32__Bail– Under‑trialprisoner‑‑ Accused in bailable offences, potty offences andoffences punishable‑ with imprisonment for less than 10 years should not unnecessarily be detained inthe jail

Under‑trial prisoners are entitled to haveclothes and food privately under 5.32; Prisons Act, which facilities are to beliberally provided to them till they are convicted.

Under section 32 of the PrisonsAct, an under‑trial prisoner is entitled to have clothes and foodprivately. These facilities should liberally be provided to them till they areconvicted.

The jails are over‑crowded. The detention of under‑trialprisoners, food and medical facilities and their transportation from jail tothe Court heavily burden public exchequer.

It would be in consonance with thelaw of bail and in the fitness of things that accused in bailable offences,petty offences and offences punishable with imprisonment for less than tenyears should not unnecessarily be detained in the jail.

(d) CriminalProcedure Code (V of 1898)‑‑‑

S.497‑‑‑Bail‑‑‑Accused of offences punishablewith death, or imprisonment for life, or for ten years‑‑‑Grant/refusalof bail to be determined judiciously having regard to the facts andcircumstances of each case

Provisions of 5.497, Cr.P.C. arenot punitive in nature as regards offences punishable with death; orimprisonment for life, imprisonment for ten years, for there is no concept ofpunishment before judgment in law

Where the prosecutionsatisfies the Court that there are “reasonable grounds” to believethat the accused has committed the crime falling in category of offencespunishable with death, or imprisonment for life, or imprisonment for ten yearsthe Court must refuse bail

Where, however, the accusedsatisfies the Court that there are no reasonable grounds to believe that he isguilty of such offence, then the Court must release him on bail

Court,for arriving at any such conclusion, isnot to conduct apreliminary trial/ inquiry but will only make tentative assessment “Reasonablegrounds” mean grounds which appeal to a reasonable and prudent

man‑‑‑Guidelinesfor Courts in disposal of bail cases furnished.‑‑[Words antiphrases].

Asregards offences, punishable with death, or imprisonment for life, orimprisonment for ten years the provisions of section 497(1) are not punitive innature.

There is no concept of punishment before judgment in the criminal lawof the land. The question of grant/refusal of bail is to be determinedjudiciously leaving regard to the facts and circumstances of each case.

Where the prosecution satisfies the Court, that there are reasonable grounds tobelieve that the accused has committed the crime falling in the category ofoffences punishable with death, or imprisonment for life, or imprisonment forten years; the Court must refuse bail.

On the other hand where the accusedsatisfies the Court that there are not reasonable grounds to believe that he isguilty of such offence, then the Court must release him on bail.

For arrivingat the conclusion as to whether or not there are reasonable grounds to believethat the accused is guilty of offence punishable with death, imprisonment forlife or imprisonment for ten years, the Court will not conduct a preliminarytrial/inquiry but will only make tentative assessment, i.e.,

will look at thematerial collected by the police for and against the accused and be prima faciesatisfied that some tangible evidence can be offered which, if left unrebutted,may lead to the inference of guilt.

Deeper appreciation of the evidence andcircumstances appearing in the case is neither desirable nor permissible atbail stage. So, the Court will not minutely examine the merits of the case orplea of defence at that stage.

Thebail order must be carefully balanced and weighed in scale of justice andrequirement of relevant law. Reasonable grounds mean grounds which appeal to areasonable and prudent man.

(e) Criminal Procedure Code (V of 1898)‑‑‑

s, 497(5)‑‑‑Bail‑‑‑Cancellation‑‑‑Grantof bail and cancellation thereof‑‑ Considerations altogetherdifferent.

Once bail is granted by Court of competentjurisdiction, then strong and exceptional grounds would be required forcancellation thereof.

(f) CriminalProcedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Bail‑To deprive a person on post‑arrestbail of the liberty is a most serious step to be taken.

.

(g) CriminalProcedure Code (V of 1898)‑

‑‑‑‑S.497‑‑‑Bail‑‑‑Offence allegedly committed byaccused punishable with death; imprisonilpent for life or imprisonment for tenyears

Benefit of reasonable doubt about occurrence itself,identity of‑the accused, part allegedly played by accused in theoccurrence, his presence on the spot and all the questions of his vicariousliability, would go to him at bail stage

Wherever reasonabledoubt arises with regard to the participation of an accused person in thecrime, he should not be deprived of the benefit of bail, for bail can neitherbe withheld nor cancelled as punishment.‑‑[Benefit of doubt].

Thereis no legal compulsion to cancel the bail of the accused who allegedly havecommitted crime punishable with death, imprisonment for life or imprisonmentfor ten years.

Question of benefit of reasonable doubt is necessary to bedetermined not only while deciding the question of guilt of an accused but alsowhile considering the question of bail because there is a wide differencebetween the jail life and a free life.

So, benefit of reasonable doubt ‘aboutoccurrence itself, identity of the accused, part allegedly played by him in theoccurrence, his presence on the spot and on the question of his vicariousliability, would go to him even at bail stage.

There is a tendency to involveinnocent persons with the guilty. Oncean innocent person isfalsely involved in a serious case then he has to remain in jail forconsiderable time. Normally it takes two years to conclude the trial.

When aperson is detained in the jail, all his dependents also suffer hardships.

Theu ltimate conviction and incarceration of a guilty person can repair the wrongcaused by a mistaken relief of interim bail granted to him, but no satisfactoryreparation can be offered to an innocent man for his unjustified incarceration ‑atany stage of the case, albeit his acquittal in the long run.

So, wheneverreasonable doubt arises with regard to the participation of an accused personin the crime, he should not be deprived of the benefit of bail. The bail canneither be withheld nor cancelled as punishment.

(h) Criminal Procedure Code (V of 1898)–

‑‑‑‑S.497‑‑‑Bail‑‑‑One Judge of the High Court onexamination of the F.LR., statements recorded under S.161, Cr.P.C. and thematerial collected during investigation was of the opinion that there were noreasonable grounds to believe that the accused were guilty of the offence allegedagainst them

Another Judge of the same High Court on the samematerial on record had come to totally different conclusion that there werereasonable grounds to believe that accused persons had committed the allegedcrime

Held contrary views/opinions of the two Judgesof the same High Court about the guilt of the accused, in circumstances, madeout 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 ofthe F.LR., statements recorded under section 161, CrP.C. and the materialcollected during investigation was of the opinion, that there were noreasonable grounds to believe that the accused were guilty of the offencesalleged against them,

whereas on the same material on record, another Judge ofthe same High Court had come to a totally different conclusion that there werereasonable .grounds to believe that the accused persons had committed thealleged crime.

The contrary conclusions arrived at by the two Judges of the HighCourt had made the existence of reasonable grounds to connect the accused withthe crime doubtful, entitling the accused to benefit of doubt at such stage.

Inany case, the contrary views/opinions of the two Judges of the High Court aboutthe guilt of the accused had made out a case of further inquiry within themeaning of subsection (2) of section 497, Cr.P.C.

Kh. Naveed Ahmad, Advocate instructed by Faizanul Haq, Advocate- on‑Recordfor Petitioners.

Abdul GhafurMangi, Additional Advocate‑General, Sindh for the State

Date of hearing:31st August, 1994.