This revision petition under section 439, Cr. P. C. Is directed against on order dated 20th May 1970 passed by the learned Sessions Judge, Karachi cancelling the bail of the petitioner and three others granted by the learned A. C. M. Court No. 11, on 27th of April 1970.
2. On the 24th of June 1970, I had passed an order on this petition expressing a desire to hear the then - Additional Advocate-- General before admitting the petition. Pursuant to the notice issued on the basis of the aforesaid order Mr. Abdul Hafiz Memon, the learned Assistant Advocate-General appeared and counsel agreed that the whole petition may be disposed of. The learned Assistant Advocate-General however, suggested that he may be given the to scrutinize the police papers before addressing the Court. The case was accordingly adjourned after hearing Mr. Maqsoom Hussain Rizvi.
3. The facts constituting this application briefly- are that on the '5th of April 1970 the complainant in the case lodged a first information report with the police at New Karachi .That the petitioner along with three other accused persons, namely, Angara, Mian and Juma entered the house of respondent No. 2, to commit theft and in the process accused Angara caused hurt by means of a gun to respondent No. 2 Angara and Mian were both apprehended on the spot by the people of the locality whilst Juma and the present applicant were arrested later on being identified by the accused in custody. The police have registered a case under section 394/397, P. P. C. Accused Juma was arrested on the 8th of April 1970 and the applicant was arrested on 12th of April 1970.
Accused before the Magistrate on the .6th of April 1970 and a remand obtained till the 15th of April 1970. The remand of Juma was obtained on 9th of April 1970 up to 15th of April 1970. The present applicant was produced before the Magistrate on the 13th of April 1970. He was also remand--ed by the Magistrate up to 15th of April 1970. On 15th of April 1970 the remand of all the accused persons was extended up till 20th of April 1970. On this date i.e. 20th of April 1970 the police made the following application to the Court :- "It is submitted that in the above matter the remand of the accused persons is expiring under the circumstances the remand of the accused persons may please by granted for the period up to 29- 4-1970. The challan could not be submitted due to the fact that it is under the consideration of Prosecution Branch. It is, therefore, prayed that remand for Jail custody under section 344, Cr. P. C.
May please be granted."
4. On the above application the learned Magistrate was pleased to pass the following order the same date :- "The accused Angara, Mian, Juma and Dost Muhammad are present in custody. In view of the police report they are remanded to the Judicial custody till 29-4-1970."
5. It would, however, seem that the accused presented an application for bail on the same date to the learned Magistrate and the main point urged in support of bail was that the remand granted under section 344, Cr. P. C. Was done without taking cognizance under section 190, Cr. P. C. And also without assign--ing reasons therefor and was thus against the spirit of law as held by a Full Bench of the West Pakistan High Court in a judgment reported in PLD 1959 Kar..
157. This application was eventually disposed of by the learned A. C. M. Court No. 11, on the 27th of April 1970, and the accused persons we're admitted to bail. It will be pertinent to produce an observa--tion of the learned A. C.
M. While granting bail :- "The failure in submitting the challan beyond the prescribed period under the law shows that the police have not been able to fulfil the requirements of the law. The police has even failed to submit a copy of the F. I. R. To the Court which should have been sent within 24 hours of the Registration of the case against the accused."
6. Soon after the accused persons were released on bail the complainant moved the learned Sessions Judge for cancella--tion of the bail. This application was resisted by the accused persons and once again reliance was mainly based upon the Full Bench case cited earlier. The learned Sessions Judge after hear--ing the counsel cancelled the bail and remanded the accused to judicial custody. I have perused the order cancelling the bail. The learned Sessions Judge has sought to distinguish the facts of the Full Bench case with those of the case before him. But frankly I have not been able to quite appreciate the distinction which has been drawn. In the first place the learned Sessions Judge seems to have assumed that in the Full Bench case a sanction for the prosecution was necessary which sanction had not been obtained. I have carefully read the Full Bench case and I do not think that this assumption of the learned Sessions Judge is warranted. No doubt it has been observed that one of the criteria necessary for taking cognizance of a case by a criminal Court is a previous sanction under sections 195 and 197, of Cr. P. C., if under law the prosecution is dependent on a previous sanction. While referring to the requirement of a sanction, their Lordships of the High Court were merely enumerating in a general way the pre-requisite conditions for taking cognizance of a case and, amongst these, was also mentioned the existence of a police report in writing of the facts constituting the offence. There is nothing in the said Judgment from which it could be inferred that in the case before the Full Bench a sanction was in fact required.
7. The learned Sessions Judge further obseved that the lower Court in such cases could have granted bail only when it had come to the conclusion that reasonable grounds did not exist to connect the accused with the crime. But since this was not the ground upon which the Magistrate had granted the bail to the respondent, he held that the lower Court had no jurisdiction to grant the bail. The argument is untenable. A careful perusal of the Full Bench case cited earlier would perhaps have shown to the learned Sessions Judge that even in that case a Sessions Judge had admitted the accused persons to bail upon failure of the police, despite several remands, to produce any material before the Court giving an opportunity to it to ascertain whether any evidence had been collected which could raise a suspicion that the accused had committed the offence with which they stood charged. It was against this order of the Sessions Judge admitting the accused to bail in the absence of any material placed by the police to connect them with the crime, that the state went in revision to the High Court. In the Full Bench case the High Court sustained the order of the Sessions Judge enlarging the accused on bail. Even to me it seems that the very inability of the police to produce before the Magistrate the F. I. R. In the case, a report of the investigation and other material would go to suggest that at the stage at which the police applied for extension of the remand up to 29-4-1970 there was nothing on the file of the Magistrate to connect the-accused with the crime.
8. The learned Sessions Judge has however observed that in their application before the Magistrate the police had clearly stated that they had submitted the challan to their prosecution branch which was scrutinizing it. From this the learned Sessions Judge concluded that there was nothing to show that material was not placed before him to pass the orders in the matter of remand. I cannot for a moment understand how a mere intima--tion to the Court that the challan had been submitted to the prosecution branch and was being scrutinized by it could be material enough to enable a Magistrate to apply his mind to the facts of the case before him. The Full Bench case referred to above lays down in no unclear terms that: remand to custody under section 344, Cr. P. C. Can be obtained only if the Court postpones the commencement of the enquiry or trial. But postponement of commencement of enquiry is a step in a judicial proceeding which can be taken only after cognizance is taken of the offence first. Unless cognizance is taken of "a case commencement of enquiry cannot be postponed, nor can an accused be remanded, to custody.
These are steps which follow upon cognizance and do not precede it. In order to postpone the commencement of the enquiry the Court has to come to a decision that in view of the existence of a reasonable case it is advisable to do so. It is obvious that such decision involves application of the mind to the case. In order to grant remand the Court has also to study the evidence collected to ascertain that it raises a suspicion against the accused and most obviously that result cannot be achieved without applying mind to the case. When the Court applies its mind to, the case for these purposes it takes cognizance of the offence. But no cognizance can be taken unless a police report, in the terms of section 90 (1) (6) is before the Court. In view of the foregoing observation of the Full Bench with all its emphasis on the need to study the evidence collected and on the applica--tion of the mind to a case I do not see how the learned Sessions Judge could have considered a mere intimation to the Magistrate that the challan of the case had been presented to the prosecution Branch of the Police for scrutiny was sufficient material enabling application of mind. On the other hand the order of the learned Magistrate granting bail to the accused persons observes that the police had even failed to submit a copy of the F. I. R. To the Court which should have been sent within 24 hours of the registra--tion of the case against the accused. In other words there seems to have been absolutely no material before the learned Magis--trate which could have mace it possible for him to apply his mind to the request for extension of remand or much less, to connect the accused with the crime.
9. The learned Sessions Judge has enumerated the conditions that are to be fulfilled for obtaining a remand under section 344 as analysed by the Full Bench. But having done so there is no evidence that he applied the principles to the facts of the case before him.
10. The learned Assistant Advocate-General has frankly conceded that the learned Sessions Judge has not correctly applied the principles enunciated in the Full Bench case. For the reasons mentioned I would set aside the order of the learned Sessions Judge cancelling the bail of the applicants. I would however direct that the applicant should furnish a surety in the sum of Rs. 10,000 to the satisfaction of the Sessions Court with a P. R. Bond in like amount before he is enlarged on bail. I must however make it clear that this order has become' necessary to state correctly what in my opinion that law is. If, however; the prosecution is in a position by now to make out a prima facie case connecting the accused with the crime and it is otherwise expe--dient that the accused should be in custody, they may apply to the learned Magistrate, who will be free to consider the application, if made, on merits and according to law.
11. The revision application is accordingly disposed of.