PLJ 2022 Cr.C. 511
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498/498-A--Pakistan Penal Code, (XLV of 1860), S. 337-F(i)/354--Pre-arrest bail in bailable offence--Confirmation of--Accused had applied for his pre-arrest bail in bailable offence under Sections 337-F(i)/354, PPC--Sections 496, 497 and 498 of the Code although are inter-connected but reading of the same constructs certain distinctions--Powers under this provision can be exercised by a Court only for a person other than a person accused of a non bailable offence--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--Judges are supposed to make reasoned decisions based on the facts and the law rather than on the basis of sympathy or empathy for litigants--Interim pre-arrest bail already granted to petitioner is confirmed. [Pp. 512, 514, 515, 516, 518 & 519] A, B, C, D, E & F
PLD 2014 SC 760; 2020 PCrLJ (Note) 4; PLD 1963 SC 478;
PLD 1995 SC 34; PLD 1997 SC 545; 2001 PCrLJ 1082; AIR 1958 SC 376; AIR 1958 Bom. 1226 ref.
Mian Mushtaq Ahmad Anjum, Advocate for Petitioner.
Ms. Rahila Shahid, DDPP for State.
Complainant in person.
Date of hearing: on 21.5.2021.
PLJ 2022 Cr.C. 511
[Lahore High Court, Lahore]
Present: Sohail Nasir, J.
versus
STATE and another--Respondents
Crl. Misc. No. 30606 of 2021, heard on 21.5.2021.
Judgment
Denial of statutory right to a litigant by the Courts is called injustice. When such refusal relates to liberty of a person having right of bail in bailable offences, it is called gross injustice that means to treat someone in an unfair way. The honorable Supreme Court of Pakistan[1] taking into consideration legitimate rights of a person was pleased to hold that:
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serious issue as to whether the petitioners, who are citizens of this country entitled to enjoy the protection of normal constitutional and legal rights, have been denied such rights on the basis of grounds which are reasonable or not (underlined by me).
torn.
3. Vide an order dated 23.04.2021 passed by learned Additional Sessions Judge, Sheikhupura said petition was dismissed and operative paragraph is as under:
"From the bare perusal of FIR this fact becomes crystal clear that accused is very well nominated in the FIR with specific role of physical assaulting the present petitioner. The MLC is also on record which supports the version of the complainant. During police investigation also the accused has been found to be connected with the commission of offence. The recovery of pistol is yet to be effected from him. The grounds of pre-arrest bail are entirely different from post arrest bail. The petitioner has miserably failed to bring on record any mala fide or ill will either on behalf of the complainant or the police regarding promptly lodged FIR. In this view of the matter, the petition in hand is hereby dismissed. Ahlmad of this court is directed to consign the file record room after its due completion."
4. Good luck prevailed that petitioner was not apprehended by the police, so he approached this Court through this application for seeking protection of his liberty by asking for pre-arrest bail.
Heard.
5. No doubt that the requirements for pre-arrest bail are different from those relevant to bail after arrest but it appears that learned Additional Sessions Judge was not cognizant of the fact that this question comes into field only when offence is non-bailable, because in bailable offence no discretion lies with the Court to refuse the concession of bail may it be pre arrest or after arrest.[2]
6. Under the Code of Criminal Procedure 1898 (Act V of 1898) (Code} for the purpose of bail the offences are divided into two categories termed as "Bailable offence" and "Non-bailable offence". These are defined under Section 4(b) as under: -
(b) "Bail able offence, "non-bail able offence": "Bailable offence" means an offence shown as bail able in the Second Schedule or which is made bail able by any other law for the time being in force; and "non-bail able offence means any other offence."
7. Above division of making the offences bailable or non-bailable was not something new in the Code. In
8. In
"496. In what cases bail to be taken: When any person other than a person accused of a non bailable offence is arrested or detained without warrant by an officer incharge of a police station or appears or is brought, before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings, before such Court to give bail, such person shall be released on bail, Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as; hereinafter provided:
Provided, further that nothing in this section shall be deemed to affect the provisions of Section 107, subsection (4), or Section 117, subsection (3).
497. When bail may be taken in case of non-bail able offence: (1) When any person accused of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years:
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498. Power to direct admission to bail or reduction of bail: The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the, case, and shall, not be excessive and the High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced."
11. When read all Sections (496, 497 and 498) together there remains no uncertainty that while deciding an application, may it be for bail after arrest or pre-arrest, in bailable offence the Court is left with no discretion to refuse the concession to an accused as in such eventuality the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.
12. In Mian Mahmud Ali Qasuri and others v. The State[4] the apex Court was pleased to hold as under:
"The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished."
13. In its landmark judgment Tariq Bashir v. The State[5] again it was held by the honorable Supreme Court of Pakistan that:
"It is crystal clear that 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."
14. Entertaining such question again the honorable Supreme Court of Pakistan in case Imtiaz Ahmad and another v. The State[6] was pleased to declare that "a person accused of a bailable offence, is entitled as of right to be released on bail and grant of bail in such cases by the Court is not an act of grace or concession".
15. Finally in identical situation when pre-arrest bail of some accused in bailable offences was refused by an Additional Sessions Judge, the matter came up for hearing before this Court in case titled Allah Bachaya and 3 others v. The State.[7] It was held that the Court is left with no option but to admit the accused to pre-arrest bail as bail is claimed in a bailable offence as a matter of right and not by way of grace or concession.
16. Although not written in the order but an impression can be gathered that learned Additional Sessions Judge was under emotions that as modesty of a female was outraged, so petitioner was not entitled for extraordinary relief of bail. This Court finds that same position was there before the apex Court.[8] Alam Zeb and Shakeel Khan were refused bail by the honorable Islamabad High Court,
"The last consideration weighing with the learned Judge in Chamber of the Islamabad High Court, Islamabad has been found by us to be offensive to the settled criminal jurisprudence of this country because it has so far been understood without any ambiguity that in a case involving a bailable offence bail is to be granted to an accused person as of right but in the case in hand the learned Judge in Chamber had observed that although the offences allegedly committed by the petitioners are bailable yet on account of such offences being heinous in nature and fatal for the society at large his lordship had not felt inclined or persuaded to admit the petitioners to bail. To start with, the learned Judge-in-Chamber was plainly incorrect in observing that the offences allegedly committed by the petitioners are bailable offences 'because the legal position is otherwise as far as many offences invoked in this case are concerned. Secondly, if for the sake of an argument the offences involved were bailable then the learned Judge-inChamber could not have termed them as heinous and fatal for the society because the legislature had not treated them as such by declaring them as bailable offences. And, thirdly, even if such heinous offences which, in the opinion of the learned Judge-in-Chamber, were fatal for the society at large were made bailable by the legislature then the learned Judge-in-Chamber was left with no discretion to refuse bail to the petitioners in a case involving such offences. We, therefore, note, and with grave concern, that in this respect the learned Judge-in-Chamber had not only misread the law but had also misapplied the same."
17. A Judge in all circumstances is under obligation to decide a case in accordance with law. The phrase "in accordance with law" means that a person will comply with the terms of the law or will abide by or obey the law.[9] The law is not to be violated by the King (Lex Non a Rege Est Violanda) is an old maxim, and equally applicable to the modern state. It is illustrated as:
"King when deciding any case should not violate the law himself also. The law is equal for and it is same for every person. It is not discriminated on the basis of any post or position, it is same for every person whether he be king or not."
18. A Judge is to follow the laws of the land and principles settled by the superior Courts. The Courts have only to go behind the principle "Let justice be done though the heavens may fall". Emotion is a fundamental aspect of human existence. In normal healthy people, feelings about options exert a powerful influence on choice. Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than toward others whom they dislike or for whom they feel disgust. Unlike Judges are expected to put their emotional reactions to litigants aside. United States Circuit Judge Jerome Frank[10] asserted that "Mr. Prejudice and Miss. Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury. Judges are supposed to make reasoned decisions based on the facts and the law rather than on the basis of sympathy or empathy for litigants.[11] Emotion, sympathy, empathy and kindness are aliens during the dispensation of justice. This principle signifies the belief that justice must be realized regardless of consequences.
"With the utmost respect, it seems to us, that this is an erroneous view in the face of the unqualified language used in Section 496 of the Code. The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished. If of course the person enlarged on bail suborns witnesses there may be other remedies at law open against him, e.g. contempt proceedings or conceivably even proceedings to bind him over to keep the peace or be of good behaviour in certain circumstances. But to hold that on such grounds the bail granted under Section 496 of the Code can be cancelled, amounts to saying that the High Court possesses inherent power to override the
express provisions of the Code Such a conclusion would be contrary to principle and finds no support from any other authority".
20. The ultimate conclusion of the discussion made above is that:
i. In case of bailable offence the accused has indefeasible right of bail.
ii. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished.
iii. In bailable offence the grant of bail is a right and not favour, whereas in non-bailable offence the grant of bail is not a right but concession/grace.
iv. The Court is left with no option but to admit the accused to bail in a bailable offence.
22. Office is directed to send a copy of this order to learned Additional Sessions Judge Sheikhupura for her guidance in future.
(K.Q.B.) Bail confirmed
[1]. Alam Zeb and another vs. The State and others PLD 2014 SC 760.
[2]. Mst. Zeenat Begum vs. Sadaqat Sagheer and another 2020 PCr.LJ Note 4.
[3]. https://www.pbus.com/page/14.
[4]. PLD 1963 SC 478.
[5]. PLD 1995 SC 34.
[6]. PLD 1997 SC 545.
[7]. 2001 PCr.LJ 1082.
[8]. Alam Zeb and another vs. The State and others PLD 2014 SC 760.
[9]. https://incorporated.zone/in-accordance-with/#In_accordance_with_the_law.
[10]. Jerome New Frank (September 10, 1889-January 13, 1957) was an American legal philosopher and author who played a leading role in the legal realism.
[11]. http://texaslawreview.org/wp-content/uploads/2015/08/Ranchlinski-93-4.pdf.
[12]. Madhukar Purshottam Nondkar v. Talab Haji Hussain AIR 1958 Bom. 1226.
[13]. AIR 1958 SC 376.
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