PLD 2008
Karachi 492
Before Khalid Ali Z. Qazi, J
THE
STATE---Petitioner
Versus
MUHAMMAD
AYOOB---Respondent
Criminal Suo
Motu Revision No.79 of 2002, decided on 23rd June, 2008.
(a) Criminal
Procedure Code (V of 1898)---
----S.
497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail
unless the matter falls under one of the following categories viz., (i) if the
person seeking bail has been placed under actual custody; or (ii) he appears in
answer to a process issued by the Court; or (iii) he is brought before the
Court by the police or by some other arresting authority---There is no legal
concept of a "judicial custody" by way of a voluntary surrender
before the Court---Unless and until the accused is under actual restraint or
custody by the police or other law enforcing authorities/agencies, he cannot be
construed to be in "custody".
Muhammad Sharif
v. The State 1979 PCr.LJ Note 7 page 5: Muhammad Saeed v. The State 1980 PCr.LJ
17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi
Muhammad PLD 1953 FC 170; Sadiq Ali .v. The State PLD 1966 SC 589; Muhammad
Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh.
25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ
183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State
PLD 1976 Pesh. 112 ref.
(b) Judicial
custody--
----Connotation---There
is no legal concept of a "judicial custody by way of a voluntary surrender
before the Court---Unless and until the accused is under actual restraint or
custody by the police or other law enforcing authorities/agencies,' he cannot
be construed to be in "custody".
(c) Criminal
Procedure Code (V of 1898)---
----S.
497(5)-Penal Code (XLV of 1860), Ss.471/468/420---Cancellation of pre-arrest
bail granted by Judicial Magistrate, refusal of---Accused had surrendered
himself before the Judicial Magistrate who vide impugned order had admitted him
to bail---Validity---Held, the order of the Judicial Magistrate admitting the
accused to bail was not in consonance with law, since in essence the Magistrate
had granted bail before arrest to him, when he had no such power---There was no
concept of a "judicial custody" by way of 'a voluntary surrender
before the Court---Unless and until the accused was under actual restraint or
custody by the police or other law enforcing agencies, he could not be
construed to be in "custody"---However, the case was not fit to
cancel the bail granted to accused at such a belated stage for the very simple
reason that on account of the Record and Proceedings having been consigned to
High Court, the trial had been delayed by 6/7 years, for which the accused
could not be attributed any blame---Even the Prosecutor-General had conceded
that cancellation of bail at such a belated stage would cause undue hardship to
the accused---Accused had been appearing on every date before High Court---Bail
allowed to accused was not cancelled in circumstances.
Muhammad Sharif
v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ
17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi
Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub
v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25;
Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983
PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The
State PLD 1976 Pesh. 112 ref.
(d) Criminal
Procedure Code (V of 1898)---
---Ss. 497/498---Pre-arrest
bail---Magistrate is not empowered to grant bail before arrest---Caveat on the
legal plane added by High Court ,to take measures and precautions in respect of
such powers of Magistrate after elucidating the concept enshrined in the settled
law.
Muhammad Sharif
v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ
17; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995
PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.
Shahaddat Awan,
Prosecutor-General and Amicus Curaie for the State.
F. Karim
Durrani for Respondent.
Date of
hearing: 23rd June, 2008.
JUDGMENT
KHALID ALI Z.
QAZI, J.---The brief facts giving rise to the present matter are that an F.I.R.
No.77 of 2001 dated 11-4-2001 was lodged by one Abdul Majeed, the complainant,
against one Muhammad Ayub, the accused, alleging commission of offences covered
under sections 471, 468 and 420 of the P.P.C. The accused Muhammad Ayub
surrendered himself before the Judicial Magistrate-II, Karachi (West), who vide
order dated 16-4-2001 and while relying upon a judgment of the Lahore High
Court reported as Muhammad Sharif v. The State 1979 PCr.LJ Note 7, page 5 was
pleased to admit the accused Muhammad Ayub to bail.
2. Aggrieved
against the grant of bail before arrest by the learned JM-II, the complainant
i.e. Abdul Majeed filed a Criminal Miscellaneous Application No.45 of 2001
under section 497(5) of the Cr.P.C. seeking cancellation of bail, which was
dismissed vide order dated 31-10-2001 by the learned IVth Additional Session
Judge, Karachi (West). Being further aggrieved by the order of the learned
Additional Session Judge the complainant preferred Criminal Revision
Application No.7 of 2002 before this Court.
3. It seems
that the complainant Abdul Majeed lost interest and did not pursue the Criminal
Revision Application No.7 of 2002. Thus vide order dated 15-4-2002 this Court'
was pleased to convert Criminal Revision Application No.7 of 2002 into a suo
motu criminal revision, which was thereafter numbered by the office as Criminal
Suo Motu Revision No.79 of 2002. In converting the revision into a suo motu
action, rather than dismissing it for non-prosecution, the Court in its order
dated 15-4-2002 had pondered that the Judicial Magistrate had no power to grant
bail before arrest. Hence notice was issued to the accused as to why the bail
before arrest granted by the Judicial Magistrate ought not to be cancelled and
the said accused remanded to custody.
4. The prime
question posed in the present proceedings is whether the Judicial Magistrate
possesses the power to grant bail before arrest and if no such power vests in
.him, what should be the consequence, especially after a lapse of 7 years when
the impugned order was passed by learned Judicial Magistrate.
5. I have heard
Mr. F. Karim Durrani, the learned counsel for the accused so also Mr. Shahadat
Awan, who first appeared as an Amicus curaie and then assisted this Court as
the Prosecutor General.
6. In order to
dilate upon the issue as to whether the Magistrate possesses the power to
accord bail before arrest, in my opinion the case of Muhammad Sharif v. The
State PLJ 1978 Criminal Case (Lahore) 553 = 1979 PCr.LJ Note 7 at page 5,
serves as a starting point. In this case the petitioner sought bail before
arrest directly from the Lahore High Court which was dismissed with the
observations that even the Magistrate had ample jurisdiction to admit a person
to bail before arrest. In this respect Muhammad Afzal Zullah J., as he then
was, observed as follows:--
"2.
Learned counsel states that the petitioners cannot move for bail before arrest
before a Magistrate. Insofar as the technical phraseology "bail before
arrest" used in some rulings is concerned, this might, on face, appear to
be correct; but the provisions contained in subsection (1) of section 497,
Cr.P.C. permits on accused person to appear before a Court of Magistrate even
prior to his physical arrest and thus after presenting himself before the Court
seek bail under sub-section (1) of section .497, Cr.P.C. For all practical
purposes, if the Magistrate grants bail it would be bail before physical
arrest."
In the
afore-cited case, the learned counsel for the petitioner had clearly taken the
stance that the Magistrate had possessed no power to accord bail before arrest,
which position was refuted by the Court. The Court had observed that the
Magistrate was empowered to grant bail before arrest even when the accused had
surrendered himself before the Court of the Magistrate prior to his physical
arrest; and the grant of bail by the Magistrate constituted bail before arrest.
7. It is, an
irony of fate that the same point came up for reconsideration before the same
learned Judge i.e. Muhammad Afsa Zullah, J., as he then was, in the case
reported as Muhammad Saeed v. The State 1980 PCr.LJ 17. In this case while the
learned Judge was pleased to observe, that his observations in the earlier
judgment of Muhammad Sharif v. The State (cited supra) were not contrary to
law, but relying upon Hidayatulalh Khan v. The Crown PLD 1949 Lahore 21. The
Crown v. Khushi Muhammad PLD 1953 FC 170, Sadiq Ali v. The State PLD 1966 SC
589 and Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003, the learned Judge
was pleased to revisit the earlier judgment of Muhammad Sharif authored by him,
holding that the Magistrate could only grant bail in the following
circumstances:
"(a) if
the person seeking bail has been placed under actual custody;
or
(b) he appears
in answer to a process issued by the Court; or
(c) he is
brought before the Court---.
(i) by the
Police; or
(ii) by some
other arresting authority."
8. The
categories in which the Magistrate could grant bail, as under scored above,
have been deciphered from the pronouncement of the 'Hon'ble Supreme Court in
the case of Sadiq Ali v. The State PLD 1966 SC 589. A bare perusal of the above
except would confirm that in the first category bail could only be granted if
the person was in actual custody; the second category deals with a situation
when a person appears in answer to a process issued by the Court. The grant of
bail in this category is only relatable to ensuring appearance. In the third
category either the police or some other law enforcing agency brings a person
before the Magistrate. This really means that there is no scope for a person to
contend that his voluntarily appearance before the Court should be construed as
"judicial custody". The concept of "custody" as enunciated
in The Crown v. Khushi Muhammad PLD 1953 FC 170 connotes that the person is
under some actual restraint. In other words, there is no concept of
constructive custody before the Court or a Judge by way of a voluntary
surrender. To further make out this point reference is invited to Jumma Khan v.
The State PLD 1960 Pesh. 25 wherein it was held that the appearance before the
Court mentioned in section 497 of the Cr.P.C. is appearance in compliance with
a process issued by a Court. It was further observed that where no process for_
the appearance of an accused person is issued by any Court and he voluntarily
makes appearance, he is neither under any form of restraint nor has he any
process for his restraint. Although the judgments in The Crown v. Khushi
Muhammad and Jumma Khan v. The State were delivered at the time when the
concept of bail before arrest was till in its embryonic state in Pakistan, the
said two judgments are still good authority for the proposition and to the
extent that a voluntary surrender per se before the Court of law cannot be
construed as "custody". A word of caution is required to be placed.
The latter two judgments in negating the concept of bail before arrest are no
longer good law in the view of the development of the law of bail before arrest
in our country. One may in this respect refer to the dissenting opinion of
Mukhtar Ahmed Junejo, J., as he then was, in Hakim Ali Zardari v. The State PLD
1998 SC 1 wherein the learned Judge was pleased to observe that the law of bail
is not static but rather grows so as to mouldy itself with the exigencies of
time. Although the opinion of Mukhtar Ahmed Junejo, J., as he then was, in the
referred case was a minority view, the observations just referred hold good as
a general proposition of law. In other words, though the ultimate result as
reached by the learned Judge may not be good law, being the minority view, the
referred observations with regards the law of bail being a dynamic concept
seems to be well settled.
9. Therefore, I
hold as follows:--
(a) a
Magistrate cannot grant bail unless the matter falls under one of the
categories mentioned in the excerpt from Muhammad Saeed v. The State 1980
PCr.LJ 17 reproduced in para. 7 above.
(b) there is no
legal concept of a "judicial custody" by way of a voluntary surrender
before the Court. Unless and until the accused is under actual restraint or
custody by the police or other law enforcement authorities/agencies he cannot
be construed to be in "custody".
10. In light of
the above, I have do hesitation to observe that the order of the learned
Judicial Magistrate dated 16-4-2001 admitting the accused to bail was not in
consonance with law since in essence the Magistrate had granted bail before
arrest when he had no such power as held above. But having said so this is not
a fit case to cancel the bail for the very simple reason that on account of the
record and proceeding having been consigned to this Court the trial has been
delayed by 6-7 years. For this, the accused cannot be attributed any blame.
Even the learned Prosecutor General/Amicus Curaie Mr. Shahadat Awan has
submitted that it is not a fit case to cancel the bail at such a belated stage
since otherwise the said cancellation would cause undue hardship to the
accused. The learned counsel for the accused has maintained that the accused
has appeared on every date before this Court and has even executed a PR bond
before this Court apart from submitting surety/security before the Magistrate.
In view of the above the bail is not cancelled and the PR bond and. any other
surety/security is kept intact.
11. Let the
office remit the Record and Proceedings back to the learned trial Court
immediately whereafter it is expected that the trial Court shall expeditiously
complete the trial and pronounce judgment.
12. Before
parting I wish to add a caveat on the legal plane. I have been able to lay my
hands on Wajid Ali v. The State 1983 PCr.LJ 183 and Raza Muhammad v. The State
1995 PCr.LJ 1190 where in certain observations give an impression that the
Magistrate is empowered to grant bail before arrest. Such observations so also
the judgment/order in Muhammad Shaif v. The State PLJ 1978 criminal Cases
(Lahore) 553 = 1979 PCr.LJ Note 7 at page 5 are found to be per incurium, not
being the correct statement of law. The observation in Muhammad Saeed v. The
State 1980 PCr.LJ 17 to the effect the Muhammad Sharif's case (cited supra) is
not contrary to law is again per incurium. Barring such observation, the
judgment in Muhammad Saeed v. The State 1980 PCr.LJ 17 correctly states the
law. In order to make the discussion complete, reference is invited to the case
of Taj Muhammad v. The State PLD 1976 Peshawar 112. In this case petitioner had
applied for a bail before arrest directly to the Peshawar High Court which was
declined on the ground that before approaching the High Court the petitioner
should first exhaust the remedy before the lower Court. It was further observed
that it was only in exceptional cases that a petitioner could directly move for
bail before the High Court. In dismissing the petition the Court was pleased to
suggest that the legislature had conferred the power to grant bail to the
Magistrate at the initial stage. The relevant excerpt in this regard from the
above judgment of the Peshawar High Court is reproduced as follows:--
"To repeat
it with emphasis, I must say that though the discretion under section 498 is absolute,
the High Court and for that matter the Court of Session must exercise it
judicially and since the Legislature has chosen to introduce 'the initial stage
of dealing with the question of bail to Magistrates and while the Magistrates
have ample power to exercise their discretion, in all matters barring very few,
the High Court ought not to grant bail in such cases except for exceptional and
for very special reasons. For these reasons, I do not consider this a. fit case
for bail. The petition thus stands dismissed."
If the above
judgment of the Peshawar High Court is construed as conferring upon the
Magistrate the power to grant pre-arrest bail, it will face the same fate as'
the case of Muhammad Sharif v. The State i.e. the Peshawar High Court judgment will
also have to be reckoned as per incurium. However, in my humble opinion the
above extract from the judgment of the Peshawar High Court is to be understood
as only equipping the Magistrate with the power to grant bail after arrest in
offences for which the Magistrate has the jurisdiction. The above observations,
in my humble opinion, do not lay down the principle that the Magistrate has the
power to grant pre-arrest bail. .
13. Let a copy
of this order be made available to the learned Registrar of this Court,
Secretary Law, Government of Sindh, Home Secretary, Government of Sindh and
Secretary Prosecution Service Department, Government of Sindh, who in turn are
directed to circulate this order to all the relevant functionaries. The
Registrar of this Court is in particular directed to circulate a copy of this
order to all the Judicial Magistrates in the Province of Sindh.
14. Before
parting with the matter I wish to express my sense of gratitude for invaluable
assistance rendered by Mr. Shandat Awan, who first appeared 'as Amicus Curaie
and then assisted this Court as the Prosecutor General Sindh.
N.H.Q./S-55/K Petition dismissed.
