Case Law and Judgment (Theft of motor vehicle, dishonestly receiving stolen property---Bail, grant of--)

 P L D 2017 Supreme Court 733

(a) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 381-A & 411---Theft of motor vehicle, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused was alleged to have stolen a motorbike, which was subsequently recovered from his house---No one had witnessed the lifting of the motorbike and no evidence to that effect was available on record, therefore, the insertion of S. 381-A, P.P.C. in the charge against accused, appeared not only unjustified but also spoke about mala fide of the police---Question as to whether in the peculiar circumstances of the case, the petitioner was liable to be prosecuted under S. 381-A, P.P.C. or 411 P.P.C., was a debatable question to which the Trial Court could give due consideration---None of the two offences with which accused was charged were punishable with imprisonment falling within the prohibitory limb of S. of 497, Cr.P.C. thus, refusal to grant bail to the accused would be highly unjustified---Accused was granted bail accordingly.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Cases not falling within the prohibitory clause of S. 497, Cr.P.C. and practice in subordinate courts of refusing bail in such cases on feeble grounds---Supreme Court observed that such practice should come to an end because the public, particularly accused persons charged for such offences were unnecessarily burdened with extra expenditure and the Supreme Court was heavily taxed because hundreds of leave petitions piled up in the Supreme Court and the diary of the Court was congested with such like petitions; that precious time of the Supreme Court was wasted in disposal of such petitions; that the Supreme Court was purely a constitutional court to deal with intricate questions of law and Constitution and to lay down guiding principles for the Courts of the country where law points required interpretation; that prisons were accommodating convicted and under-trial prisoners more than double their capacity and State authorities were involved in transporting such prisoners from the prisons to the court premises on daily basis for court hearings, which involved risks and extra expenditures from the public exchequer; and that grant of bail in offences not falling within the prohibitory limb of S. 497, Cr.P.C. was a rule and refusal an exception, therefore all subordinate courts, special courts and tribunals should follow said principle in its letter and spirit.

Mansha Khan v. The State 1977 SCMR 449; Tariq Bashir v. The State PLD 1995 SC 34; The State v. Syed Qaim Ali Shah 1992 SCMR 2192 and Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607 ref.

(c) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Discretion of court---Scope---Once the legislature had conferred discretion on the court to exercise jurisdiction in particular category of offences without placing any prohibition on such discretion then, the court shall not import to such provision of law, reasons or factors alien thereto and not specifically mentioned in the statute.

Ijaz Ahmad Toor, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Muhammad Sarwar Sidhu, APG Punjab and Muhammad Ijaz, ASI for the State.

Date of hearing: 22nd August, 2017.

Present: Dost Muhammad Khan, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD TANVEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 662 of 2017, decided on 22nd August, 2017.

(On appeal against the judgment dated 22.5.2017 passed by the Lahore High Court, Multan Bench, Multan in Crl. Misc. No. 2593-B of 2017)

JUDGMENT

DOST MUHAMMAD KHAN, J.---The petitioner was booked in Crime No.902 dated 19.10.2016, registered at Police Station Mumtazabad, Multan under sections 381-A/411, P.P.C. He was refused grant of bail by the Courts below therefore, he seeks leave to appeal against the order of the Lahore High Court, Multan Bench, Multan dated 22.5.2017.

2. The allegations against the petitioner are that, Usman Waseem the complainant parked his CD-70 Honda Motorbike bearing Registration No.MNP-7713 near Doctor Zaheer's clinic and when he returned after getting medicines from the clinic, he found the motorbike missing then, he got registered the case against unknown accused.

3. At a subsequent stage, allegedly, the said motorbike was recovered from the house of the petitioner thus, he was implicated in the case.

4. None has witnessed the lifting of the motorbike and no evidence to that effect is available on record, therefore, the insertion of section 381-A, P.P.C. appears not only unjustified but also speaks about mala fide of the police. Whether in the peculiar circumstances of the case, the petitioner is liable to be prosecuted under section 381-A, P.P.C. or 411 P.P.C., is a debatable question to which the Trial Court shall give due consideration, being a borderline case and when none of the two offences are punishable with imprisonment falling within the prohibitory limb of section of 497, Cr.P.C. then, refusing to grant bail to the petitioner would be highly unjustified.

5. The High Court and the Trial Court refused to grant bail to the petitioner on the ground that he was involved in some other cases of the same nature, without taking care that what was the final result of those, because today we are provided additional documents where in all those cases the petitioner has been granted bail.

6. We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation.

7. The Supreme Court regulating the grant or refusal of bail has since long laid down binding and guiding principles however, the principle in two cases, out of many are directly attracted to the present case, are mentioned herein once again. In the case of Mansha Khan v. The State (1977 SCMR 449) it was held as follows:-

"----S.497 Crl.P.C. read with section 325/34, P.P.C.--- Grievous hurt---Bail---Offence under S. 325, P.P.C. (repealed) being punishable with 7 years' R.I. is not one of such offences where bail is to be refused by reason of prohibition . contained in section 497, Cr.P.C.---Held, bail in such cases, hence, not to be refused merely because of offence being non-bailable---Any strong reason being absent to refuse bail, Courts below, held, not properly exercised their discretion in refusing bail on basis of number of injuries suffered by victim of attack."

8. In the case of Tariq Bashir v. The State (PLD 995 SC 34) this Court has taken notice of stock of prevailing circumstances where under-trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years. It was held that "bail in such offences shall not be refused." This Court took further pains by reproducing the entire provision of section 497, Cr.P.C. and further held that "grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and convincing reasons should be recorded." While elaborating exceptions, albeit it was mentioned by this Court that if there is a danger of the offence being repeated if the accused is released on bail, then grant of bail may be refused like the two Courts below in this case have held but it was further elaborated that such opinion of the Court shall not be founded on mere apprehension and self assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on surmises and artificial or weak premise.

9. Even otherwise to ensure that the accused may not repeat the same offence, if released on bail, sufficient surety bonds shall be obtained through reliable sureties besides the legal position that repetition of the same offence would disentitle the accused to stay at large as bail granting order may be recalled in that event, therefore, such a ground should not be an absolute bar in the way of grant of bail.

10. There is a sky high difference between jail life and free life. If the accused person is ultimately acquitted in such cases then, no kind of compensation would be sufficient enough to repair the wrong caused to him due to his incarceration.

11. It is settled principle of law that once the Legislature has conferred discretion on the Court to exercise jurisdiction in particular category of offences without placing any prohibition on such discretion then, the Court shall not import to the provision of law, reasons or factors alien thereto and not specifically mentioned in the Statute.

12. Today every prison is accommodating convicted and under-trial prisoners more than double of its capacity and allied facilities besides the State authorities are involved on daily basis in transporting such under-trial prisoners from the prisons to the Court premises on every date of hearing, involving risk and extra expenditures from the public exchequer while on the other hand the dependent family members, especially the school going children of the under-trial prisoners charged for such offences are left without proper care and supervision of the father or mother when their parents are sent to jail, therefore, their academic career is always at stake and they are tempted and persuaded to indulge in unsocial or anti-social activities ultimately landing them in the field of crimes, which is not good for the society at large.

13. Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts.

14. Although in some special laws there are specific provisions, limiting the scope of section 497, Cr.P.C. however, this Court in many reported cases has laid down binding principles that the provisions of section 497, Cr.P.C. shall not be ignored even in those cases and the guiding provisions/principles given therein shall always be kept in mind while considering the grant or refusal of bail.

In this regard the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the famous case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607) are much relevant, where principle of section 497, Cr.P.C. was held to be applicable even to such cases of course subject to slight limitation.

15. We expect the Courts below to adhere to these binding principles in future and not to act mechanically in the matter of granting or refusal of bail because liberty of citizen is involved in such matters, therefore, same should not be decided in vacuum and without proper judicial approach.

16. Accordingly, this petition is converted into appeal and the same is allowed. The petitioner is granted bail in the sum of twenty thousands rupees (Rs.20,000/-) with one surety to the satisfaction of the Trial Court or Duty Magistrate. In case the bail bonds are attested by the Duty Magistrate then, it shall be forwarded to the Trial Court to be placed on the judicial file for future course of action.

MWA/M-44/SC Bail granted.