P L D 2008 Karachi 492

P L D 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;

(b) he appears in answer to a process issued by the Court; or

(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.

Petition dismissed.