Bail Exceptional Cases Refusal

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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.

JUDGMENT

MUHAMMAD MUNIR KHAN, J: --This petition for leave to appeal is directed against the
order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-arrest bail granted to the
petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and Kamran Bashic, Suhail Zafar,
Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.LR. No.146/1993, dated ?-4-1993, Police
Station Ferozeabad, by Mr. Justice Syed Khurshid Hyder Rizvi (as he then was) was cancelled by
Mr. Justice Mamoon Kazi of the same High Court.

2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. five unknown persons, duly
armed, committed dacoity in the house of Mst. Robina Amjad and took away ornaments, jewellery,
cash and prize bonds. On the report of Mst. Robina Amjad, F.LR. under section 17(3) of the
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police
Station Ferozeabad on the same day at 4-15 p.m. The petitioners were arrested on 2-11-1993 and
the stolen property was allegedly recovered from them. They were released on bail by the High
Court which was subsequently cancelled vide impugned order. Hence this petition for leave to
appeal.

3. Learned counsel for the petitioners contended that post-arrest bail granted to the petitioners by
one learned Judge of the High Court has been cancelled by another learned Judge of the same High
Court without legal and factual justification.

4. Learned Additional Advocate-General has half-heartedly supported the order of cancellation of


bail on the ground of seriousness of the charge.

5. Being fully' conscious of the seriousness of the charge against the petitioners we have
examined the impugned order of the cancellation of bail with utmost care on our part.

6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code read as
hereunder:---

"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 as officer-in-charge 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 of 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-bailable offence.---(1) When only 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:

Provided that the Court may direct that any person under the age of sixteen years or any woman or
any sick or infirm person accused of such an offence be released on bail:

Provided further that a person accused of an offence as aforesaid shall not be released on bail unless
the prosecution has been given notice to show cause why he should not be so released,

2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case
may be, that there are not reasonable grounds for believing that the accused has committed a non-
bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused
shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter provided.,"

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. 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 ten years; and (ii) offences punishable with imprisonment for fuss than .ten
years. The principle to be deduced from this provision of law is that 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 abscondcace 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) where the accused is a previous convict.

We know that many under-trial accused of bailable offences and I preventive offences i.e. offences
under sections 10?, 109 and 110, Cr.P.C. have been sent to confined in jails for want of surety bonds
although they, at the discretion of the Court, could be released on execution by them of bond
(personal bond) without surety for their appearance before the Court. We also find that even in petty
cases the Courts/subordinate Courts have remanded 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 rotting in the jail for a long time. It is, 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 better that the Court should be lenient in the, matter of
bail, food and medical facilities. It is to be noted that 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 in our country are over​crowded. The detention of
under-trial prisoners, food and medical facilities and their transformation 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 less than ten years should not unnecessarily be detained in the jail.

7. As regards the first category of offences (punishable with death, or imprisonment for life, or
with ten years' imprisonment) 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 'nail is to be determined judiciously having regard to the facts and circumstances of
each case. Where the prosecution satisfies the Court, that I there are reasonable grounds to believe
that the accused has committed the crime falling in the first category 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 with ten years' imprisonment, 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.

8. The case-law on the subject of bail is very much clear that 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.

9. The considerations for the grant of bail and for cancellation of the same are altogether different.
Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds
would be required for cancellation thereof. To deprive a person on post-arrest bail of the liberty is a
most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who
allegedly has 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 bat: 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. It is by now judiciously recognized that there is a tendency in our country 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.

10. In the instant case, one learned Judge of the High Court on examination of the F.LR.,
statements recorded under section 161, Cr.P.C. and the material collected during investigation was
of the opinion that there were not reasonable grounds to believe that the petitioners are guilty of the
offences alleged against them, whereas on the same material on record, another learned Judge of the
same High Court has come to a totally different conclusion than there are reasonable grounds to
believe that the petitioners have committed the alleged crime. We feel that the contrary conclusions
arrived at by the two learned Judges of the High Court have made the existence of reasonable
grounds to connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt
at this stage. In any case, the contrary views/opinions of the two learned Judges of the High Court
about the guilt of the petitioners have made. out a case of further inquiry within the meaning of
,subsection (2) of section 497, Cr.P.C. '

11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of the High
Court are supportable from the facts and circumstances of the case. The names of the
petitioners/accused are not mentioned although two of them namely, Tariq Bashir and Shahzad
Bashir are the first cousins of the complainant. In the F.LR., number of the accused given by the
complainant was five. During investigation it was exaggerated from five to nine. Three persons
namely, Jano Bhatti, Capt. Nadeem, and Nadeem son of Jano who were previously known to the
complainant were also implicated. The details of the jewellery, ornaments, number of prize bonds
and the amount of cash are not mentioned in the F.LR. In this view of the matter, it cannot be said
that on the tentative assessment of the evidence the learned Judge of the High Court was not
justified in granting, bail to the petitioners.

12. Accordingly, the petition is converted into an appeal and allowed, subject to the petitioners
furnishing fresh hail bonds in the sum of Rs. 25,000 each, with one surety each in the like amount
to the satisfaction of the trial curt. The challan has already been submitted in the Court. The trial
Court is directed to die the case within six months. The observations made by High Court in the
impugned orders and by this Court in this judgment are without prejudice to the case of either party
at trial.

By our short order we had converted the petition into an appeal and allowed the same. These are the
reasons therefor.

M.B.A:/T-104/S

Order accordingly

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