Naseer Ahmad and Muhammad Jahangir sons of Muhammad Sarwar, petitioners herein, are resident of Chak No, 68/RB, tehsil Jarranwala, District Faisalabad. A case FIR No, 53 dated 08.03.2009 under Section 302/324/452/148 read with 149 PPC was registered against them at Police Station Balouchni, District Faisalabad. On 02.05.2009, the petitioners herein, made an application under Section 498 read with Section 86 of the Code of Criminal Procedure, 1898 for grant of protective bail in the above said murder case before learned Additional Sessions Judge, Chiniot, showing their temporary residence near Bhawana Morr, Jhang road, Chiniot. Mr. Sabir Sultan, Additional Sessions Judge, Chiniot, entertained the bail petition and allowed protective bail to the petitioners herein in the case registered at P.S. Balouchani beyond his territorial jurisdiction vide order dated 02.05.2009, which reads as under:- "The instant protective bail has been applied in case FIR No, 513 dated 8.3.2009 in offences u/S. 302/324/452/148/149 PPC P.S. Balochani, Faisalabad.
Counsel for the petitioners argued that the petitioners are innocent, it is their first protective bail duly supported by their affidavits. The protective bail is granted to the petitioners up till 09.05.2009 so that the petitioners can redress their grievance accordingly."
2. On 12.05.2009, the petitioners approached this Court for protective bail in the same case showing their present residence in Imamiya Colony, Lahore. To a question as to why the Court of Session, Faisalabad had not been moved in the first instance, the learned counsel contended that Faisalabad Police made it impossible for the petitioners to lay their request for anticipatory bail before the learned Court of Session, Faisalabad. Without adverting to the claim of the petitioners that on 02.05.2009 they resided near Bhawana Morr, Chiniot, District Jhang and on 12.05.2009, they shifted to Imamia colony, Lahore, they were allowed protective bail for three days only. However, the bail petition was kept pending to answer the following legal questions:-- (I)What is the scope of enabling/protective bail and under what provisions of law the bail is granted to the accused?
(II)Whether the Sessions Judge or the Additional Sessions Judge is possessed with the jurisdiction to allow protective bail to the accused in a case not falling within their territorial jurisdiction?
4. In order to determine the above questions, I find it convenient to reproduce below Sections 86, 496, 497 and 498 of the Code of the Criminal Procedure:-- Section 86: Procedure by Magistrate before whom person arrested is brought.--(1) Such Magistrate or District Superintendent shall, if the person arrested appears to be the person intended by the Court; which issued the warrant, direct his removal in custody to such Court: Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or a direction has been endorsed under Section 76 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent shall take such bail or security, as the case may be and forward the bond to the Court which issued the warrant.
Provided further that, if the offence is not bailable or no direction has been endorsed under Section 76 on the warrant, the Sessions Judge of the Sessions division iii which the person is arrested may, subject to the provisions of Section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court.
(2) Nothing in this section shall be deemed to prevent a police-officer from taking security under Section 76.
Section 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 an 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 or 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 117, sub-section (4) or Section 117, sub-section (3). Section 497. When bail may be taken in case of non-bailable offence.--(1) When any 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 sick or infirm person accused of such an offence be released on bail: Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force: Provided further that a woman may not be so released if there appears reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case the Court directs that she may be released on bail: Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf: 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 of 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 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.
(3)An officer or a Court releasing any person on bail under subsection (1) or sub-section (2) shall record in writing his or its reasons for so doing.
(4)If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable ground for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance tip hear judgment delivered.
(5)A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
Section 498. Power to direct admission to bail or reduction of bail. 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, and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police-officer or Magistrate be reduced.
Section 498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered,, etc. Nothing in section 497 or Section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction."
5. Section 496 Cr.P.0 deals with bail of the accused in bailable offences. This is an absolute legal principle subject to no exception that under the mandatory provisions of Section 496 Cr.P.C, the accused of bailable offence is entitled to bail as a matter of right without any 'application for bail.
This provisions of law is of no avail to the petitioners as they stand charged with non-bailable provisions of PPC.
6. Section 497 r.P.0 governs the bail in a case of non-bailable offence. Grant of bail in a case not falling within prohibitory clause of Section 497 is a rule and refusal an exception as laid down by the Apex Court in Tariq Bashir's case (PLD 1995 SC 34). Under first Proviso to this Section an accused of non-bailable offence under the age of 16 years or sick or infirm shall be released on bail. Under Provisos 2 and 3 to Section 497 ibid all the offences against woman accused shall be taken as bailable notwithstanding anything contained in Schedule II of the Code, excepting the offences of terrorism, financial corruption, murder and such offences punishable with death or imprisonment for life or imprisonment for 10 years. If the case for bail of an accused of non- bailable offence does not come within the ambit of any of the above Provisos even then he shall be released on bail if the allegation qua his role is open to further inquiry and doubt because of the established legal principle that benefit of doubt is right of the accused, even at bail stage. The request for bail, which the petitioners had laid before the Additional Sessions Judge, Chiniot, does not come within the purview of Section 497 Cr. P.0 as the petitioners had not been arrested and the case was registered against them at Police Station Baloachani, not falling within the territorial limits of Sub-division Chiniot or district Jhang.
7. Section 498 Cr.P.C. gives wide powers to the High Court and the Court of Session to grant pre- arrest bail. Jurisdiction of High Court and Court of Session under these provisions of law is concurrent. While keeping the concurrent jurisdiction of the High Court and the Court of Session under Section 498 Cr.P.0 in juxta position, it is not difficult to say that the powers of the High Court to grant such bail are unfettered by any condition. Needless to add that the discretion is to be exercised by the Court under these provisions of law judicially and not arbitrarily. Anticipatory bail under Section 498 Cr.P.0 being extra ordinary relief, is granted on extra ordinary grounds and that is why it has been held by this Court time and again that a good ground for post arrest bail is no ground for pre-arrest bail. The petitioners herein made request for their bail before the ASJ, Chiniot under Section 498 Cr.P.0 apprehending arrest in the case registered at a Police Station of district.
Faisalabad. A perusal of Sections 7, 8 and 9 of the Code of criminal Procedure would show that the Sessions Judge or Additional Sessions Judge shall have no jurisdiction to grant bail in the cases registered at a Police Station located beyond the territorial jurisdiction of the Sessions Division with which they are attached. Section 7 ibid lays down that each province shall consist of sessions divisions and every sessions division shall for the purpose of this Code be a district or consist of districts. Under Section 9 of the Code, the Provincial Government is required to establish a Court of Session for every sessions division and appoint a judge of such Court. Sub-section (3) of Section 9 provides that the Provincial Government may appoint Additional Sessions Judges to exercise jurisdiction in one or more sessions divisions. If these provisions are read together, it is very easy to understand that the Sessions Judge or Additional Sessions Judge is not possessed with the jurisdiction to entertain or decide bail petitions arising out of the cases not falling within the territorial jurisdiction of the Sessions division, for which they are appointed or posted. Hence, it is not difficult to conclude that the learned Additional Sessions Judge, Chiniot was not competent to receive, entertain and decide the bail petition of the petitioners.
8. Protective/enabling bail is nowhere defined or provided in lithe Code. However, the protective bail is granted to the accused to enable him to approach the concerned Court for the purpose of obtaining pre-arrest bail. Protective bail is obviously granted without touching merits of the case and it is an established practice of the High Court. The order of protective bail, being for limited period, expires automatically on the target date. In case the protective bail is allowed to the accused for a fixed period, it would not make him entitled to the pre-arrest bail as a Klmatter of right. Technically speaking restraining the Police from arresting the accused to enable him to approach the concerned Court for pre-arrest bail is not a bail. If the High Court feels that the accused is not in a position to lay his request for pre-arrest bail before the concerned Court of Session, the Police is restrained from arresting him for a few days in exercise of inherent powers to enable the accused to approach the concerned Court. At the cost of repetition it is noteworthy that if all the provisions of bail are read together, the protection given to the accused enabling him to approach the concerned Court for his bail does I not amount to his bail. It is injunctive order in exercise of inherent powers by the High Court, which is being termed as protective or enabling bail.
The Court of Session does not have inherent powers under Section 561-A Cr.P.C. Being creation of Section 9 of the Code, the learned Sessions Judge and learned Additional Sessions Judge are competent to grant post arrest or pre-arrest bail in the cases pertaining to their sessions division.
The Court of Session is not vested with the inherent powers to pass restraining order/ enabling bail to the above effect in the cases pertaining to another sessions division.
9. The case against the petitioners herein was registered at Police Station Balouchani, district Faisalabad. 'Hence, only the Court of Session, Faisalabad was/is competent to grant post arrest or pre-arrest bail to the petitioners in the above said case. There was no legal justification for the learned Additional Sessions Judge to allow them protective or enabling bail in the, case not falling within his territorial jurisdiction. During the course of arguments, learned counsel for the petitioners attempted to argue that the petitioners approached the Court of learned Additional Session Judge, Chiniot, district Jhang under Section 86 Cr.P.C. The contention is misconceived for the simple reason that Section 86 of the Code lays down the procedure for a Magistrate before whom a person arrested is brought. In the case in hand, the petitioners had neither been arrested in any case nor produced before the Magistrate, hence there was no occasion to press into service the provisions of Section 86 Cr.P.C. Learned counsel has argued that it was common practice amongst the Sessions Judges and Additional Sessions Judges in the Punjab to grant protective bail to the accused of a case of another sessions division. However, the learned counsel could not quote any provisions of law, which might empower the Sessions Judge or Additional Sessions Judge to allow such bail in the case registered beyond their territorial jurisdiction.
10. The learned counsel lastly contended that on administrative side, the office of Member of Inspection Team, Lahore High Court, allowed the Sessions Judges in the Punjab to grant protective bail to the. accused under certain terms. Here, I would say that the Member of Inspection Team (the MIT) is not competent to confer such jurisdiction upon the Sessions Judges or the Additional Sessions Judges not vested in them under the Code. If any letter of the MIT on the subject is alive as argued by the learned counsel it should be ignored being nullity in the eyes of law.
11. For the foregoing reasons, I am of the view that the learned Additional Sessions Judge, Chiniot entertained the petition and allowed protective bail to the petitioners mechanically and without application of legal and judicial mind. The protective bail granting order by the learned Additional Sessions Judge being illegal, without jurisdiction and void abinitio cannot be allowed to hold the field, which is accordingly set aside.
12. The learned Additional Sessions Judge, Chiniot exercised inherent powers not vested in him and thus encroached upon the exclusive jurisdiction of the High Court. He had no jurisdiction to entertain the bail petition in a case relating to the sessions division Faisalabad. Either he did not have adequate knowledge of criminal law or passed the impugned order in routine blindly. A copy of this order be sent to the learned Additional Sessions Judge through the Registrar, Lahore High Court, asking him to update his legal knowledge.