P L D 1966 Supreme Court 1003

Present : A. R. Cornelius, C. J., S. A. Rahman, Fazle Akbar Hamoodur Rahman and

Muhammad Yaqub Ali, JJ
MUHAMMAD AYUB Appellant
versus
(1) MUHAMMAD YAQUE
AND
(2) THE STATE Respondents
Criminal Appeal No. E of 1966, decided on 5th October 1966.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 22nd December, 196'5, in Criminal Miscellaneous No. 3176 of 1965 and
judgment and order of the same Court, dated the 18th November, 1965, in Criminal
Miscellaneous No. 2864 of 1965).
(a) Criminal Procedure Code (Y of 1898), Ss. 498, 497 & 496 Bail True nature and
scope of powers conferred on High Court and Court of Session by S. 498 Whether
and to what extent S. 498 ancillary and subsidiary to provisions of Ss. 496 &
497¬Whether S. 498 does not enlarge categories of persons to whom bail can be
granted under Ss. 496 & 497 and whether it does not make provision for situations
and contingencies not covered by Ss. 496 & 497 [dictum in Lala Jairam Das v. King
Emperor 72 I A 121 fully examined].
The question that fell for consideration before the Supreme Court was: whether s ion
498, Cr. P. C., is only ancillary and subsidiary to the provisions of sections 469 &
497 of the Code or whether that section could be construed to extend that power of
the High court or the Court of Session to grant bail under Section 497. The learned
Judge examined the true nature and scope 498 S A Rahman J with whom Cornelius
C.J and Fazle Akber, J concurred, was of the opinion that section 498, Cr P C is not
to be construed to extend the power of the High Court or, a Court of Session to giant
bail in cases where these Courts would not be competent to grant Mail under section
497 of the Code. As against this a different view was expressed by Hamoodur
Rahman, J. and Yaqub Ali, J. The observations and reasons advanced by the
Judges are as follows:
Per S. A. Rahman, J. (Cornelius, C. J. and Fazle Akbar, J., concurring): A
consideration of the context in which it occurs would show that section 498 should
apply only to accused persons and not to those convicted of an offence. Section 426
of the Code grants power of bail to the appellate Court, in respect of convicted
persons. Subsection (2) of that section expressly enacts that such a power may be
exercised by the High Court, in the case of an appeal by a convicted person to a
Court subordinate thereto. That section confers no such powers on a Court of
Session. The very fact that express conferment of this power in the case of the High
Court is mentioned, excludes the existence of a similar power in the case of a
Sessions Court. If section 498 is so construed as to include within its scope
convicted persons, then its provisions would come into conflict¬ with section to far
as the Court of Session is concerned. Indeed, on such a view, the Court of Session
would, under section 498 have power to grant bail to, a convicted person appealing
to the High Court. Such a construction, if possible, should be avoided. Therefore,
section 498 should be interpreted with reference to the context in which it occurs
and should be held confined to the case of an accused person once. It is to be
noticed that t is section starts by saying that 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. The "bond" mentioned herein is obviously one to be
executed by an accused person. The context, therefore, shows that the power of bail
too under this section should be held limited to the cases of accused persons The
cases of convicts are sufficiently provided for by sections 426 and 435 of the Code
and there was no necessity for repeating provisions regarding bail to them in section
498 of the Code.
This is one limitation which should be spelt out from section 498, when seen in the
light of the other provisions in the Code. The second, and the more important,
limitation seems to be that which confines the scope of section 498 in non bailable
cases to the category of persons, visualized by section 497.
The word "appears" in sections 496 and 497 need not be construed to include
voluntary appearance, even in circumstances of grave apprehension of arrest. This
word may be taken to have been used in sections 496 and 497, in the same sense
as in section 242 or 252 of the Code, which obviously contemplate appearance in
answer to a process issued by a Court. This interpretation will have the merit of
saving section 498 in its own right. The position that emerges then would be that
under sections 496 and 497, Criminal Procedure Code, the Court can bail out a
person only if he has been placed under actual custody or appears in answer to a
process issued or is brought before the Court, presumably by the police, or by some
other arresting authority. In other words, these sections apply where there has been
an actual arrest attracting the Court's jurisdiction or the Court is seized of the
proceedings directly, in which bail is requested. Section 498, however, would be
called in aid, before the Court of Session and the High Court, even where the Court
is not seized directly of the proceedings in question and where no actual arrest has
been made so far but anticipatory bail is asked for, e.g., where the case is still at a
stage of investigation by the police or is pending in a subordinate Court. The power
to grant such anticipatory bail would thus be confined to the High Court and the
Court of Session and other Courts would be excluded from its scope. This
interpretation would seem to be consistent with the use of general expressions like
"in any case" and "any person" in section 498. The High Court or Court of Session
would also of course have concurrent as well as revisional powers, in respect of
orders by the police or the subordinate magistracy, in the matter of bail, under
section 498, read with sections 496 and 497.
The contention that the generality of the words "in any u case" or "any person"
occurring in section 498, of the Code should be given full effect and the limitations
imposed by section 497 should not be held to govern section 498 of the Code,
cannot be accepted for if the High Court tries a murder case on the original side, the
limitations on the grant of bail specified in section 497, Criminal Procedure Code,
would be fully applicable to the High Court. They would also apply if action is taken
under section 497 in respect of an accused person who is actually under arrest by
order of a subordinate authority. Therefore, if the wider interpretation, suggested for
the provisions of section 498 of the Code, is adopted, then it would follow that the
High Court's power gets enlarged in respect of bail, in non bailable cases, when a
case is pending in a subordinate Court or is under investigation by the police under
that section, but it gets curtailed as soon as the case comes up for trial before itself,
so that section 497 gets attracted to the case. The better view seems to be, that the
policy of the law, in respect of bail to persons, accused of non bailable offences, is
laid down in section 497 and the same policy should be kept in view, while
considering the question of bail under section 498, Criminal Procedure Code. After
all, judicial discretion has to be exercised, while granting bail and the power
conferred by section 498 of the Code cannot be construed to be purely arbitrary. In
this respect, therefore, section 498 of the Code seems to me to be "ancillary or
subsidiary" to sections 496 and 497 of the Code.
In other respects, however, section 498 occupies the position of a supplementary
provision in so far as it confers not only concurrent but revisional powers on the High
Court and the Court of Session in respect of grant or refusal of bail by subordinate
Courts and the police and enables these Courts to exercise the power of anticipatory
bail, in suitable cases.
Per Hamoodur Rahman, J. Taking into account the context in which section 498
appears and the wide words deliberately used in it in respect of the power of
granting bail it seems that it is in the nature of a residuary and supplementary
provision giving to superior Criminal Courts, namely, the High Court and the Court of
Session, a wider power to grant bail, in appropriate cases, to persons to whom bail
cannot be granted under sections 496 and 497. In what manner this power should
be exercised or by what' principles these superior Courts should be guided in
exercising their discretion is an altogether different question and should not, be
taken into account for determining the true scope of this section. There can be no
doubt that section 498 gives extended and wider powers to the High Court and the
Court of Session but this power full will no doubt normally be exercised in a
reasonable and judicial manner taking into account the limitations placed by other
provisions of the Code upon subordinate authorities and that a rule founded on
justice and equity will not be disregarded unless there be exceptional circumstances.
But this is a self imposed restriction and not a restriction imposed by anything
contained in the section. Normally this general salutary principle will no doubt be
kept in view and will not be lightly departed from but this should not be held to debar
the High Court and the Court of Session from deviating from it in exceptional cases
or as controlling the wide words of section 498 as a matter of construction of the
section. This principle is invoked in aid more as a precaution against the
indiscriminate grant of bail and not as a statutory clog upon the powers of these
Courts.
Per Muhammad Yaqub Ali, J.-- There is no warrant to import into section 498 the
ingredients of section 497. Sections 496 and 497 speak of bail and bonds. The first
part of section 498 emphasises that Courts and police officers shall fix their amount
with due regard to the circumstances of the case and shall not be excessive and the
concluding part empowers the High Court or the Court of Session to reduce the bail
required by a police officer or Magistrate. To this extent section 498 may be said to
be ancillary to sections 496 and 497. The remaining part of the section which
confers on the High Court or the Court of Session the power to admit any person to
bail in any case and whether there be an appeal on conviction or not is, however, an
independent provision. The plain meanings of the words employed by the
Legislature in section 498 cannot be departed from on any rule of construction. The
words "in any case" do away with the distinction made in section 497 between cases
punishable with transportation for life and death and cases involving lesser penalty.
Similarly the use of the words "any person" confer jurisdiction in respect of persons
who may not be under arrest and do not appear in obedience to a process issued by
the Court or are not brought before the Court as envisaged in section 497. It is the
effect of these words which, justify grant of bail before arrest and not the subtle
difference between the words "release on bail" and "admit to bail" used in sections
497 and 498 respectively.
The High Court and Court of Session are not included in the term `Court' used in
section 497. There will thus be no anomaly that the High Court and Court of Session
while trying cases will be subject to the limits imposed by section 497, for in either
case their powers in the matter of grant of bail will be the same. This, however, does
not confer an arbitrary power to grant bail on the High Court and the Court of
Session. The policy of law is laid down in section 497 and the Courts will act in aid of
that policy, but there will always be cases of exceptional nature in which bail may be
granted notwithstanding the limitation imposed by section 497. But if section 498 is
held to be subsidiary and ancillary to section 497 then the power to grant bail in such
cases will be taken away.
Jairam Das and others v. King Emperor 72 I A 121; Crown v. Khushi Muhammad P
L D 1953 F C 170; Gushtasab Khan v. Crown P L D 1956 F C 117; Khalid Saigol v.
The State P L D 1962 S C 495; Sadiq Ali v. The State Criminal Appeal No. K 3 of
1965 (unreported); Hidayatullah Khan v. The Crown P L D 1949 Lah. 21; Sardar
Ataullah Khan v. The State P L D 1963 Kar. 136; Ahmad and others v. The Crown P
L D 1958 Lah. 280; Rasool Bakhsh and others v. The State P L D 1956 Kar. 381;
Mir Ajam Shah v. Mir Qadir Shah P L D 1965 Pesh. 23; Harsha Nath Pal v. State P
L D 1959 Dacca 113; Emperor v. Sourindra Mohan I L R 37 Cal. 412; Ashraf Ali v.
Emperor I L R 42 Cal. 25; Naranji Premji v. Emperor A I R 1928 Bom. 244 and Gul
v. Emperor A I R 1928 Sind 142 ref.
(b) Precedents Privy Council decisions, construction of statutes based on authority
of Court in Pakistan would be loath to adopt 'new interpretation unless strong
grounds call for new interpretation. [Supreme Court Practice.]
It is no doubt true that the decisions of Privy Council are no longer binding on the
Courts in Pakistan but they are nevertheless entitled even now to the highest
respect and should not be lightly departed from, particularly where the decision
relates to law which is still in force in the same form. The Privy Council was the
highest Court of appeal, in regard to cases arising in this country, till sometime after
Partition, and unless strong grounds are made out for rejection of a construction of a
statute, hitherto accepted on the authority of the Privy Council, the Supreme Court in
Pakistan would be loath to adopt a new interpretation of the relevant enactment.
(c) Criminal Procedure Code (V of 1898), Ss. 496, 497 & 498 Expression "released
on bail" in Ss. 496 & 497 and "to be admitted" to bail" in S. 498 Two expressions
synonymous. [S. A. Rahman, J.]
(d) Criminal Procedure Code (V of 1898) Ss. 496, 497 & 498 Bail Word "appears" in
Ss. 496 & 497 Means: appearing in response to a process Voluntary appearance
not included [decision in Sadiq Ali v. The State, Criminal Appeal No. K 3 of 1965
(unreported) modified] Court under Ss. 496 & 497 can bail out person only if he has
been placed under actual custody or appears in answer to process issued or is
brought before Court by arresting authority Anticipatory Pail Attracts provision of S.
498. [S. A. Rahman, J.
M. B. Zaman, Senior Advocate Supreme Court instructed by Salim Ahmad Malik,
Attorney for Appellant.
Abdul Aziz Qureshi, Advocate High Court, briefed with Hassan Ali Shah, Advocate
Supreme Court instructed by Ghulam Mohyuddin, Attorney for Respondent No. 1.
Saeedur Rahman Khan, Advocate Supreme Court, instructed by Ijaz Ali, Attorney for
the State.
Dates of hearing: 13th and 14th April 1966.