1. ' ABDUL HAYEE KURESHI, C.J.-- One Rais Phalwan son of Abdul Hafeez was accused of an offence under section 307, P.P.C., and on the said charge he was sent up for trial before the XIXth Senior Civil Judge and Assistant Sessions Judge at Karachi. The case was numbered as 1029 of 1983. On facts, it was alleged that he had caused 8 or 9 injuries on the person of injured Ghulam Hussain, and these were incised wounds. It seems a medical report had also been submitted showing that the injured had received a partial fracture. The Jail application was made in the Court and grant of bail was opposed on the ground that since, offence under section 307, P.P.C. Was punishable for imprisonment for life, or imprisonment for 10 years, therefore, the embargo contained in subsection
(1) of section 497, Cr.P.C. Barred the grant of bail except in cases where the Court comes to believe that there were no reasonable grounds for believing that he was guilty of an offence punishable for imprisonment of life, or imprisonment for 10 years. Some reported cases were brought to the notice of the Senior Civil Judge, in which conflicting views had been expressed. It appears that a decision of a learned Single Judge from Lahore High Court in the case of Amir v. State reported in 1973 P Cr. L J 205, was brought to the notice of the Assistant Sessions Judge, wherein the learned Judge had stated as follows:- "If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant of refuse bail in exercise of its discretion."
2. ' The other case that was brought to the notice of Assistant Sessions Judge, was the case of Haji Gul Khan and 2 others v. State reported in PLD 1982 Kar.
3. 1011. In that case the decision from Lahore High Court in the case of Amir v. State reported in 1973 P Cr. L J 205 was taken notice of by the Judge deciding the case in the Sind High Court, and the learned Judge observed, that regardless of the venue for trial if the offence is punishable with imprisonment for life, or 10 years, the bar contained in section 497, Cr.P.C. Will be attracted without regard to the power of the Court. It may be mentioned that the judgment in Karachi case was delivered by one of us. In these circumstances when conflicting views from the Lahore High Court and Sind High Court were placed before the Assistant Sessions Judge, he expressed that in view of these divergent views, a Judge of a lower Court is placed in predicament, as to which view he should accept and which he should not. However, without expressing as to which case h'e would follow, bail was granted.
4. ' It seems one Ghulam Hussain was aggrieved by the order that was passed by the Assistant Sessions Judge on the bail application and he made an application on the Administrative side of this Court. This case was again examined by another Judge of this Bench, who also took notice of another case namely the case of Hoti v. State reported in 1982 P Cr. L J 763, wherein one Judge of this Bench had followed the view expressed in case of Amir. Since there was an apparent conflict of judicial authority not only between the judgment in Amir's case from Lahore High Court, and the judgment in the case of Haji Gul Khan from this High Court, as also the judgment in the case of Hoti v. State, this Full Bench was constituted to consider these conflicting views. The Full Bench formulated the following question:- "Whether the embargo provided under section 497, Cr.P.C. Prohibiting grant of bail in respect of the offence punishable with death or imprisonment for life, or R.I. For 10 years will be attracted, even if such offence is tried by a Court which cannot award 10 years' rigorous imprisonment."
5. ' It may be stated that the background for formulation of this question was an argument that was raised when the initial application for cancellation of bail had come up, because the learned Advocate stated that the bar contained in subsection (1) Of section 497, Cr.P.C. Would not be attracted in the cases which, in spite of being punishable for imprisonment of life or 10 years, were being tried by a Court which did not have the power to award a sentence of imprisonment for 10 years.
6. ' This Full Bench has been constituted to answer that question and on 23-9-1984, the Full Bench had requested Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Mr. Azizullah K. Shaikh, Mr. Muhammad Hayat Junejo, and Mr. Abdul Qadir Halepota to appear and assist the Court in resolving the points.
7. ' At the time of hearing was heard Mr. Mansoob Ali Qureshi, who had appeared for the accused, and we have also heard, Mr. Muhammad Ibrahim Memon, Mr. Muhammad Hayat Junejo, and Mr. Abdul Qadir Halepota. Mr. Abdul Sattar Shaikh, Additional Advocate-General appeared for the State.
8. ' Mr. Muhammad Hayat Junejo had invited us to examine the terms of subsection (1) of section 497, Cr.P.C. And he stated that the language was so clear that no other interpretation was possible except that if the offence was punishable with death or imprisonment for life or for 10 years, the embargo on the grant of bail would be attracted. He submitted that the words "but he shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with etc. Etc." cannot be understood to mean that the Court has to refuse bail only if it thinks that the sentence that will be passed, will be of any of the three descriptions mentioned in subsection (1) of section 497, Cr.P.C., but if the sentence provided for the offence was one of the three sentences described in the section, the embargo will be attracted. Mr. Muhammad Hayat Junejo also adopted the points that had been mentioned in the case of Haji Gul Khan and 2 others v. State PLD 1982 Kar.
9. 1011. He went on to state that if the Legislature had intended to provide that the actual quantum of sentence to be inflicted were the criteria in the application of the embargo contained in the section, the words such as "is likely to be awarded a sentence of death or imprisonment of life or 10 years" should have been used by the Legislature. It was contended by Mr. Muhammad Hayat Junejo, that the language of section (1) of section 497, Cr.P.C. Being clear and unambiguous, no other interpretation was possible.
10. ' On the other hand, Mr. Abdul Qadir Halepota, invited our attention to the case of Emperor v. Naga San Htwa and others, which is the decision of a Full Bench of Rangoon High Court reported in 1927 Cr. L J (Vol.28) 773, and pointed out the following passage appearing in the said report:- "The Magistrates are bound when weighing the probability of the prisoner appearing for trial, to consider the nature of the offence charged, the character of the evidence against the prisoner and the punishment which, in the even of conviction, is likely to be inflicted on the prisoner."
11. ' He next contended that if a Judge knows that he cannot inflict the sentence of imprisonment of 10 years or imprisonment of life by reason of his inferiority in judicial status, the embargo cannot be attracted. He also relied upon a judgment of Tek Chand, J. Of Punjab High Court in the case of Rao Harnarain and others v. The State, reported in AIR 1958 Pb.
123. He relied on the following passage appearing in the said case.
12. "For their guidance the Courts also look to other circumstances which may be determinative, as for example the Courts consider (a) the enormity of the charge, (b) the nature of the accusation, (c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation, (e) the danger of the applicant's absconding if he is released on bail, (f) the danger of witnesses being tampered with, (g) the protracted nature of the trial, (h) opportunity to the applicant for, preperation of his defence and access to his counsel and (i) the health, age, sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts."
13. ' Mr. Muhammad Ibrahim Memon, and Mr. Abdul Sattar Shaikh, Additional Advocate-General, had supplemented the argument advanced by Mr. Muhammad Hayat Junejo.
14. ' It will be profitable to reproduce subsection (1) (shorn of the Proviso) of section 497, Cr.P.C. And the same reads as follows:- "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 10 years."
15. ' In the case of Haji Gul Khan and 2 others v. State, this provision was considered in its depth and one of us while holding that the words "shall not be so released if there appears reasonable ground for believing that he has' been guilty of an offence punishable with death or imprisonment of life or imprisonment for 10 years" stated that these words refer only to the punishment for the offence. The views were expressed as follows:- "In short the argument is that, since the trying Court cannot impose the sentence of imprisonment for life or 10 years the bar contained in section 497, Cr.P.C. Is not applicable. On the plain reading of section 497, Cr.P.C. It would appear that an accused shall not be released on bail, if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. The import which would appear from the use of these words is that the bar relates by reference to the sentence that is prescribed for the offence in the substantive law. The concept of the power of the Court trying the offence is completely foreign to the principle laid down in section 497, Cr.P.C. The only guiding factor is the nature of the offence, and the powers of the Court are irrelevant. Taking the other view which is convassed before me would lead one to a fallacious result. The result would be that if two persons on identical charges are placed for trial before two different Courts namely the Court of Additional Sessions Judge and Assistant Sessions Judge; one who is tried by an inferior Court of Assistant Sessions Judge could be granted bail whereas the other who is tried by the Additional Sessions Judge could not be granted bail, because the Assistant Sessions Judge cannot award a sentence in excess of seven years. It would lead to destruction of uniform protection of law. What is more that while the inferior Court of Assistant Sessions Judge can grant bail, the Superior Court of Additional Sessions Judge cannot grant bail. This could not be the intention of the makers of the law. It may also be mentioned that the law does not create any categories in regard of cases under section 307, P.P.C.
16. By devising in what case, a case be sent up for trial before an Assistant Sessions Judge or Additional Sessions Judge. It may also be stated that words creating a bar to exercise of powers to grant bail as used in section 497(1), Cr.P.C. Make no reference whatsoever to the powers of the Court. The words refer only to the punishment for the offence."
17. ' At page 1015 of the report in the case of Haji Gul Khan it was again stated as follows:- "With all the respect, that I have for the Judges, who had adopted this view I am constrained to take the view that regardless of the venue for trial if the offence is punishable with imprisonment for life or 10 years, the bar contained in section 497, Cr.P.C. Will be attracted without regard to the power of the Court trying them."
18. ' On a reading of judgment in the case of Haji Gul Khan, it would appear that the grounds on which one of us was persuaded to take the view that the sentence prescribed for the offence was the guiding factor in the matter of application of the embargo contained in subsection (1) of section 497, Cr.P.C. This view has been taken because a plain reading of section 497, Cr.P.C. Would show that the powers of the Court trying the, offence was completely foreign to the purpose laid down in section 497, Cr.P.C. And that adopting the view that the grant or refusal of bail would depend on the powers of the trial Court would lead to a fallacy because an identical charges if two persons were placed for trial before two different Courts namely the Court of the Additional Sessions Judge or Assistant Sessions Judge, then the person who is tried by an inferior Court of Assistant Sessions Judge can be granted bail but one who is tried by a superior Court of Additional Sessions Judge, would be refused bail. It was in that context stated that such a interpretation would lead to destruction of uniform protection of law. We now proceed to examine the case of Amir v. State reported in 1973 P Cr. L J 205. In that case the facts were that there were counter-cases and evidence had also been recorded. It seems initially a bail application was made which was rejected so that an appeal was filed before the Supreme Court. But the same was dismissed with the direction that an application may be moved in the High Court for consideration of "whole case for the purpose of bail on the data that is available". The learned Judge of the Lahore High Court took notice of the following words which appear in Supreme Court's judgment which is reported in PLD 1972 SC 277. The Supreme Court had held that bail is not to be refused on the mere ground that the offence is punishable with transportation for life but if the Court comes to the conclusion the punishment which could be awarded in particular circumstances of the case, would be lesser than transportation of life, in that eventuality, the case would go out of the prohibition. It would mean that what their Lordships meant to convey was that the mere fact of an offence being punishable with death or imprisonment for life or 10 years, would not be sufficient to refuse bail, if on perusal of all the facts the Court comes to the conclusion that in this case a sentence of death or imprisonment for life or 10 years, would not be called for. This would mean that if on consideration of all the material a Court comes to the conclusion that the case exhibits such features as negative prospect of a severe sentence then bail could be granted. In our view, this was interpretation of the words that there should be reasonable ground to believe that the accused is guilty of an offence punishable with the aforesaid sentence. However, these words can never be stretched to convey that if a Court has no power to sentence a person to 10 years' rigorous imprisonment, the emargo will not apply. In that event it may even be said that even in cases of murder which are punishable with death or imprisonment of life, bail can be granted if there are no reasonable grounds to believe that he would be guilty of that offence. The principle evolved is foreign to the concept of the powers of the Court. This principle only relates to this, that if the facts disclosed a prima facie case showing that there are reasonable grounds for believing that the accused is guilty of an offence calling for severe sentences, he would not be released on bail. On the other hand, if he could be considered not guilty of such offence, he can be released on bail.
19. Nothing else appears to have been conveyed in the judgment in the case of Amir. It was in these circumstances, that the learned Judge from the Lahore High Court adverted to the fact of this case and summed up his conclusions in the following words:- "Therefore, the only reasonable alternative considering all the circumstances of the case their Lordships wanted to lay down as a guidance, was that while considering the question whether a case fell within the prohibition contained in subsection (1) of section 497, Cr.P.C. The Courts are not supposed to keep in view only the maximum sentence (of transportation of life) provided in the relevant law. If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion. Their Lordships, when observing that in such cases the sentence may extend to 10 years but not necessarily transportation for life which is the maximum, with respect in my view, were laying down the law that it is not necessary to think such a case as punishable only with transportation for life and further that lesser punishment, which may be awarded in a particular case, case also be visualized at the time of considering the question of bail, I, therefore, interpret, hold and apply the ruling in the case of Amir accordingly."
20. ' In paragraph 11 of the report, it would be seen that learned Judge has even considered the fact that there was a counter-case and that the accused has received injury and the opposite party was on bail, and, therefore, the bail had been granted. In any case, the decision in the case of Amir is no warrant for the proposition that if the Court by reason of his inferiority, is not authorised to impose a sentence of 10 years then bail should be granted.
21. In these circumstances, we answer the question formulated for decision by this Full Bench in the affirmative and hold that if the embargo on the grant of bail, as contemplated by section 497, Cr.P.C., is attracted, the mere fact that the case is before a Court that cannot pass sentence of death or imprisonment for life or 10 years does not authorise the Court to grant bail by holding that the embargo contained in subsection (1) of section 497, Cr.P.C. Is not attracted. We would wish to explain that on merits if the Court comes to the conclusion that the case does not constitute an offence involving sentence of death or imprisonment for life or 10 years, either by not involving the ingredients or by the reasons that there are no grounds to believe that the accused is guilty of such offence, the bail could be granted.