PLJ 2009 Cr.C. (
Present: Khalid Ali Z. Qazi, J.
STATE--Applicant
versus
MUHAMMAD AYUB--Respondent
Misc. Cr. Rev. App. No. 7 of 2002 converted to Crl. Suo
Moto Rev.
No. 79 of 2002, decided on 23.6.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of bail--Whether Magistrate
possesses the power to accord bail before arrest--Question of--Suo moto
criminal revision--Magistrate was empowered to grant bail before arrest even
when accused had surrendered himself before the Court of Magistrate prior to
his physical arrest and grant of bail by Magistrate constituted bail before arrest. [Pp. 485 & 486] A
Bail--
----Power of Magistrate--Categories in which the
Magistrate could grant bail--Bail could only be granted if the person was in
actual custody, second category deals with situation when a person appears in
answer to a process issued by Court--In third category either police or some
other law enforcing agency brings a person before the Magistrate--Held: No
scope for a person to contend that his voluntarily appearance before the Court
should be construed as judicial magistrate. [P.
486] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Concept of constructive custody before
Court--Held: Where no process for appearance of an accused 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. [P. 486] C
Bail--
----Law of bail being a dynamic concept--Magistrate
cannot grant bail unless the matter falls under one of categories. [P. 487] D
1980 PCr.LJ 17.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of bail--Power of magistrate
to grant of bail--Magistrate granted bail before arrest--Challenge
to--Validity--Other of Judicial Magistrate 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--It is not a fit case to cancel the
bail at such belated stage--Cancellation would cause undue hardship to accused. [P. 487] E & F
Power of Magistrate--
----Bail--Power of--Legislature had conferred power to
grant bail to Magistrate at initial stage. [P.
488] G
PLD 1949
PLD 1966 SC 1003,
rel.
Mr. Shahadat Awan, P.G. & Amicus Curaie for State.
Mr. F. Karim Durrani, Advocate for Respondent.
Date of hearing: 23.6.2008.
Judgment
The brief facts giving rise to the present matter are
that an FIR No. 77/2001 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 PPC. The accused
Muhammad Ayub surrendered himself before the Judicial Magistrate-II,
2. Aggrieved
against the grant of bail before arrest by the learned JM-II, the Complainant
i.e. Abdul Majeed filed a Criminal Misc. Application No. 45/A/2001 u/S. 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 Sessions Judge,
3. It seems that
the Complainant Abdul Majeed lost interest and did not pursue the Criminal
Revision Application No. 7/2002. Thus vide order dated 15.4.2002 this Court was
pleased to convert Criminal Revision Application No. 7/2002 into a suo moto
criminal revision, which was thereafter numbered by the office as Criminal Suo
Moto Revision No. 79/2002. In converting the revision into a suo moto 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 Cases (
"2. Learned counsel states that the petitioners
cannot move for bail before arrest before a Magistrate. In so far 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 an 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 subsection (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
A
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 Afzal Zullah J, as
he then was, in the case reported as Muhammad Saeed v. The State 1980 P.Cr.L.J
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 Hidayatullah Khan v. The
Crown PLD 1949
"(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 underscored 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 excerpt
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 Juma Khan v.
The State PLD 1960
process for his restraint. Although the judgments in The
Crown v. Khushi Muhammad and Juma 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 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 mould 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 P.Cr.L.J. 17 reproduced in
para 7 above;
D
(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 no 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 Proceedings 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
E
F
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
Waid Ali v. The State 1983 P.Cr.L.J. 183 and Raza Muhammad v. The State 1995
P.Cr.L.J. 1190 wherein certain observations give an impression that the
Magistrate is empowered to grant bail before arrest. Such observations so also
the judgment/order in Muhammad Sharif v. The State PLJ 1978 Criminal cases
(Lahore) 553 = 1979 P.Cr.L.J. Note 7 at page 5 are found to be per incuriam,
not being the correct statement of law. The observation in Muhammad Saeed v.
The State 1980 P.Cr.L.J. 17 to the effect that Muhammad Sharif's case (cited
supra) is not contrary to law is again per incuriam. Barring such observation,
the judgment in Muhammad Saeed v. The State 1980 P.Cr.L.J 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
"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 Sessions 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 incuriam.
However, in my humble opinion the above extract from the
Cr.C. Muhamad Zaman v. State PLJ
(Tariq Shamim,
J.)
2009 Muhamad Zaman
v. State Cr.C.
(Tariq Shamim,
J.)
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, Govt. of Sindh, Home Secretary, Govt. of Sindh and Secretary Prosecution
Service Department, Govt. 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
14. Before parting
with the matter I wish to express my sense of gratitude for invaluable
assistance rendered by Mr. Shahadat Awan, who first appeared as Amicus Curaie
and then assisted this Court as the Prosecutor General Sindh.
(R.A.) Order accordingly