1. These are two petitions under section 497(5), Cr. P. C,, for cancellation of bail granted by me in two murder cases by my order, dated 22-7-1971 (impugned in Criminal Miscellaneous No. 2420/B-71) and order dated 15-10-1970 (impugned in Criminal Miscellaneous No. 2118/B-71). As common questions of law are involved and arguments have been heard together, therefore, both the petitions are being disposed of together.
2. While granting bail in the first mentioned case, I noticed on the statement made by the learned counsel for the State, that three police officers investigated the case including a D. S. P. and had declared the eight respondents as innocent. I also noticed on the statement made by the learned counsel for the accused that they had not been summoned to face commitment proceedings nor a private complaint had been filed against them. On these facts particularly, on the result of the investigation by the police, I held that the case of the eight accused was covered by subsection (2) of section 497, Cr. P. C. and that they were entitled to bail.
3. Ch. Nazir Ahmad Khan, learned counsel for the complainant, in support of the petition for cancellation of bail, has contended that the statements made before me on all the three matters, namely, the opinion of the police, the summoning of the accused to face inquiry and the filing of the complaint, were incorrect; therefore, the bail should be cancelled and, in any case, this Court was not bound by the opinion of the police and this being a case in which the complainant party (eye-witnesses) continued to accuse the respondents of direct participation in the occurrence, they are not entitled to remain on bail. On the basis of some affidavits and reports made to the police, he has also urged that the respondents have misused the concession of bail and the same should be cancelled.
4. Mr. M. Anwar, learned counsel for the respondents, has in reply contended that on the questions of the opinion of the police and the summoning of the accused, the statements made were not wrong and on the question of filing of the complaint, his colleague (Mr. Aftab Furrukh, Advocate) had informed this Court by a subsequent statement and written application that after the announcement of the order by me on 22-7-1971, thp accused had heard that Manzoor Ahmed, the first informant in the case, had lodged a complaint before a Magistrate. On the question of law, he has contended that under subsection (2) of section 497, Cr. P. C., the opinion of the police will govern the question of bail till the conclusion of the trial and, in any case, till the conclusion of the inquiry; therefore, the accused were entitled to bail as of right. On the question of misuse of concession, counter-affidavits have been filed. It may be noted that in this case, the witnesses have not so far been examined before the learned committing Magistrate. Learned counsel for the petitioner has tried to argue that it is due to the delaying tactics of the accused-respondents, but I am not satisfied on this point because there is not sufficient material to come to that conclusion.
5. In the second case, in my order granting the bail it was held that the opinion expressed by the police came within subsection (2) of section 497. I also held that the accused- respondents therein, in whose favour the opinion was expressed, were entitled on the basis of that opinion, as of right, to be released on bail/and that in such like cases this Court had no discretion to refuse bail. Syed Ali Raza, learned counsel for Sultan the first informant, has contended that on the basis of the statements of the eye-witnesses recorded By the learned committing Magistrate the accused-respondents have, by order dated 8-6-1971, been committed to stand trial for offences under sections 148, 302/149, P. P. C. Relying on some Supreme Court decisions, he has contended that after the commitment the accused- respondents cannot remain on bail. Mr. M. Saleern, learned counsel for the respondents, has addressed lengthy arguments on the question that the observations made by the Supreme Court cited by the learned counsel for the petitioner cannot be treated as law laid down by the Supreme Court and have to be read only in context of the cases which were before their Loidships; therefore, this Court is not bound by them. On merits, he has contended that the opinion of the police is a very strong factor, even after commitment, to be taken note of by the Court while considering the question of bail and that the commitment order per se is no ground for refusing bail. During the arguments, Mr. Saleern stated that the trial was to commence before the Sessions Court on or about the day that the arguments were to be heard on application for cancellation of bail in this Court, but he did not know whether the trial actually commenced and that if it commenced what happened thereafter.'
6. The question that arises is whether as result of investigation by the police, a declaration by an officer-in-charge of the police station (which expression, admittedly, includes higher police officers) that the accused is innocent, entitles him to bail as of right, even if the allegation is of an offence punishable with death or transportation for life. In the judgment in Criminal Miscellaneous No. 6197 of 1970, no doubt it was held by me that such a declaration would be binding on the Court insofar as the question of bail is concerned and the accused would be entitled as of right to be released on bail. I was then of the view that there being no specific provision in subsection (2) of section 497, Cr. P. C., as to the stage till when such a declaration will enure for the benefit of accused, the wider interpretation entitling the accused to this benefit till the later stages could be adopted, in view of the principles applicable to the interpretation of statutes on crimes. After hearing the learned counsel for the petitioners in these two cases, I confess that the view then expressed by me is an extreme one. And even by applying the salutary principles of interpretation of statutes, an interpretation of subsection (2) of section 497 is possible so as to hold that the opinion of the police is, strictly speaking, not binding on the Court in bail matters.
7. Subsection (2) of section 497, Cr. P. C. reads an follows "497.--(1) (2) If it appears to such officer or 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 had committed a non-bailable offence, but that there are sufficient grounds 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." This, when read in the context of subsection (1) of section 497, could as well have been made as second proviso to that subsection. The Legislature clearly intended to make certain exceptions to the prohibition contained in subsection (1) oi section 497. One clear exception visualized in subsection (2) is that if such officer finds the accused innocent of such offence he, under the law, is bound to release him on bail. There is no doubt about this proposition. If after an Investigating Officer declares an accused person innocent and the accused person demands from him that he should be released on bail and in spite of this the police officer refuses to release him on bail he would be committing an illegality because on such a finding by the police officer he is bound, under section 169 as well as under section 497(2), Cr. P. C., to release the accused on bail.
8. There is no alternative for him. The same, however, does not necessarily apply to the Court. Both the forums, i.e. such officer or Court, are provided in subsection (2). In other words, either of them can come to a conclusion that there are no reasonable grounds to believe that the accused has committed such an offence. If they can come to this conclusion, they can also come to the contrary conclusion; namely, that reasdiiable grounds exist for believing that the accused has committed such an offence, if this is possible, then another very important possibility cannot be excluded, namely, that the police officer may come to a conclusion that there are no reasonable grounds for believing that the accused has committed such an offence, but when the matter is placed before the Court, it may come to a contrary conclusion that reasonable grounds exist for believing that he has committed such offence. A vivid and practical example can be visualized.
9. Supposing a police officer, on the material placed before him by the complainant party, comes to the conclusion that no reasonable grounds exist for believing that such an offence has been committed by the accused. Supposing further that after such an opinion, the accused makes a confession, the evidence about which is otherwise reliable and is placed before the Court, and the Court on the basis of this fresh evidence comes to the conclusion that reasonable grounds exist for believing that he has committed such an offence. Obviously, subsection (2), even if it had earlier made it incumbent on the police officer to release the accused on bail, does not give any mandate to the Court that despite a belief contrary to the opinion of the police officer, it (the Court) continues to be bound by the earlier opinion of the police and has nb power to refuse the bail. As to which Court can cancel the bail in such a situation is a different matter, but the power cannot be denied to the Court. An interpretation, therefore, is possible that despite the opinion of the police officer one way or the other, the Court can form its own opinion on the material placed before it and can come to its independent conclusion as to the existence or otherwise of reasonable grounds for believing that the accused has committed such an offence.] If it comes to the conclusion that such grounds do not exist,' then, on this finding the accused, under subsection (2), becomes] entitled to be released on bail not because of any such earlier! conclusion by the police officer but because of an independent! conclusion by the Court. I, therefore, hold that when the Court! is considering the question of bail, the opinion of the Investigating] Officer is not binding on it. And to that extent, I agree with thel argument raised by Ch. Nazir Ahmad Khan and consequently modify my view expressed earlier in this behalf.
10. In view of what I have said above, the contention of Mr. M. Anwar, that the opinion of the police officer will continue to be binding on the Courts till the conclusion of the trial and, in any case, till the conclusion of the enquiry, as discussed above, docs not necessarily follow from the provisions contained in subsection (2) of section 497, Cr. P. C. Therefore 1 decline to accept the same. One argument raised in this behalf, on the face, no doubt earlier appeared to me to be convincing; but on proper scrutiny, it is not found to be of impelling force so as not to change my view. The argument is that the expression used in subsection (2) namely, "but that there arc sufficient grounds for further inquiry into his guiit, the accused shall,----------------- ", indicates that the conclusion reached by the police officer in this behalf would continue to govern the bail matter during and till "further inquiry"; and because "further inquiry" includes commitment proceedings and also the inquiry into the guilt by the trial Court, therefore such a conclusion would govern the matter till the end of the trial. No doubt, as I have said above, the argument is very impressive, but in the context the expression is to be applicable to both; the officer as well as the Court and, as discussed above, a possibility cannot be ruled out that notwithstanding the conclusion by a police officer otherwise the Court, before and during the inquiry can come to a conclusion that such reasonable grounds do exist. If this is the situation, then the Court is not bound to release the accused on bail merely on the ground that "further inquiry" into his guilt is necessary. This consideration provided in subsection (2) would be attracted only if it appears to the Court that no such reasonable grounds exist. Therefore, as soon as a Court at any stage comes to a conclusion that reasonable grounds exist for believing that the accused has committed an offence punishable with death or transportation for life, it can refuse the bail because then the accused is not, as of right, entitled to it and if he is already on bail the same can be cancelled, subject of course to the provisions of subsection (5) of section 497, Cr. P. C., and the principles applicable to the question of cancellation of bail. In such circumstances, the mere fact that "further inquiry" i.s yet to be made will not make any difference. ji From the above discussion, an important question [irises, namely, if the police officer has released an accused on bail'mnder subsection (2) of section 497, which Court cat* cancel the bail on the finding that reasonable grounds exist for believing that the accused has committed such an offence. Specific provision for cancellation of bail is made in subsection (5) of section 497 which reads as follows :-- "497.--(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."
11. It is obvious that no Court other than a High Court or a Court of Session can cancel the bail under this provision unless the accused has been released on bail by itself. If the police officer releases an accused on bail under subsection (2), a Magistrate whether dealing with commitment or trial, cannot cancel the bail under section 497(5), Cr. P. C. This view has the support of Nasar Ahmad v.
12. State (1), and an unreported case of this Court in Ibrahim and another v. State (Crl. Misc. No. 8628 of 1970). This case was also taken up to the Supreme Court in petition for Special Leave to Appeal No. 15 of 1971. Their Lordships of the Supreme Court did not make any adverse comment on the above expressed view. It may, however, be explained that the High Court and the Sessions Court have ample power to cancel such bail. Ch. Nazir Ahmad Khan has contended that the Magistrate would have power to cancel the bail under subsection (3) of section 173 after taking the cognizance. Reference is also made to the provisions contained in section 190, to show as to when cognizance is taken. It is doubtful whether the expression used in subsection (3), namely, "or otherwise as he thinks fit" empowers the Magistrate also to cancel the bail which has been granted, as of right, to the accused earlier and for the cancellation of which there is a specific provision in subsection (5) of section 497. As suggested by Mr. Saleern, it is quite possible that the above expression in the context means only this much that instead of discharging the accused of the bond submitted by him before the police, he may direct him to furnish another bond and or to furnish sureties in this behalf if the police had not earlier asked for the same. It is not necessary for me to give any conclusive finding on the question raised and the answer noted above, as this aspect of section 173 read with section 190, Cr. P. C., is not directly relevant in this case.
13. It may be mentioned that Ch. Nazir Ahmad Khan tried to canvass the proposition that while submitting a report under section 173, Cr. P. C., the police is not competent to mention therein the fact that according to its finding any accused is innocent; therefore the general practice of the Investigating Officers to mention the name of a person whom they have found innocent, in column No. 2 of the challan report is without any legal support. I do not agree with him. Section 173 has to be read in the context of the other provisions contained in Chapter XIV of the Cr. P. C. Section 169 provides that if, upon an investigation under this Chapter, it appears to the police officer concerned that there is not sufficient material against an accused to justify his being forwarded to a Magistrate, such officer shall, if such person is in custody, release him on his [17] executing a bond with or without sureties for possible appearance before a Magistrate competent to take cognizance of the offence. Subsection (3) of section 173 provides that if from the report submitted under this section it appears that the accused has been released by the police on his executing a bond, the Magistrate shall pass an order either for the discharge of such bond or otherwise as he thinks fit. lt is, therefore, assumed in subsection (3) of section 173 that the report to be submitted under this section shall contain a reference to what has been done by the police under section 169. In other words, if the police has, after a finding of innocence, released the accused on his bond, this fact must be mentioned in the challan report. If that is so, then it is for the Provincial Government to prescribe the form in which this information is to be laid before the Magistrate, under section'173(1) (a) and there is nothing illegal or improper for the Provincial Government having made provision in column No. 2 in the challan report for this purpose, nor will it be proper for the police to mention such a fact in the last column of the challan where the facts and circumstarices of the case are to be mentioned. The argument of the learned counsel that such a report by the police is not in accord with the spirit of sub-clause (a) of subsection (1) of section 173, has also not convinced me. It is provided therein that, amongst other things, in the prescribed form information with regard to action under section 169, Cr. P. C., if any, would be mentioned. If the release on bond of the accused by a police officer is to be mentioned, it is not against the spirit of the provision to assume that the reason why he has been released on bail is also to be mentioned because primarily it will be on the basis of that reason that the Magistrate, when reading the report, will be making the order as provided in subsection (3) of section 173, Cr. P.
14. C.
15. The next important question that arises is: what is the general effect of the conclusion reached by the concerned police officer as to the innocence of an accused, on question of bail to be decided by a Court. After some argument, Ch. Nazir Ahmad Khan conceded that subject to his argument that the police cannot express such an opinion in the report under section 173, Cr. P. C., if such an opinion otherwise comes to the notice of the Court, it would be a relevant factor for consideration for the purpose of bail. He did cite a ruling of the Supreme Court, namely, Muhammad Ashraf v. The State (1) wherein some observations were made in respect of the opinion of police officer about the guilt of an accused person. But he subsequently conceded that the observations were made in the context of "finding of guilty", after the trial and not in respect of bail before or during the pendency of the trial.
16. Mr. Saleern cited Piare Dusadh and others v. Emperor (2) and Connelly v. Prosecutions, Director of Public Prosecutions (3) in support of the proposition that the conclusion by the police is [18] relevant to be considered for the purpose of bail. The facts are distinguishable. Moreover, it has been held by superior Courts in Pakistan that the opinion of the police is not relevant fori the purpose of determining the guilt or otherwise of the accused, I, however, agree that for the purpose of considering the question of bail, there is a statutory provision contained in section 497(2) which should be treated as an addition to this rule/prindple. B The provision contained in subsection (2) has already been discussed above. When read with subsection (3), it specifically provides that the opinion as a result of the investigation by the police is definitely relevant for the purpose of bail. ln my view, the circumstance that the police officer concerned has come to a conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence will not only be a relevant factor but will be a very important consideration for the Court for deciding the question of bail. Here I agree with Mr. M. Anwar that if the investigating agency, which is an important instrument of State for the purpose of prosecuting offenders, itself is not willing to say that the accused is guilty, unless there are strong circumstances otherwise so as to come to another reasonable conclusion, the Court should not discard such a conclusion for the purpose of bail. This, of course, is subject to the condition that this conclusion would not be legally binding on the Court, it would also look anomalous that according to law (subsection (2) of section 497) till the bail matter is brought up before the Court and after such a conclusion by the police officer, the accused is entitled, as of right, to bail to be granted by the police but by mere initiation of the proceedings in Court, whether by way of specific cognizance or by way of consideration of bail matter, the entire position would change and what a moment earlier might be a right is taken away by mere initiation of such proceedings in Court. The correct position of somewhat conflicting course provided in subsection (2) of section 497 can be visualized, namely, that a conclusion by the police officer having given the right to the accused to be released on bail by that officer, will have strong influence on the Court for the purpose of bail (only) unless and until the Court comes to its own different finding that the conclusion of the police officer is wrong, ln this context, the conclusion of the police officer will continue to have a strong influence on the course to be. adopted by the Court for the purpose of bail. However, as the Court can come to a different conclusion, therefore it can be legitimately assumed that the law requires that the Court may come to a different conclusion but on some circumstances/material which was not before the police. One such circumstance which can be assumed in the facts of the present cases is that the Court might have recorded the statements of material witnesses including eye-witnesses, if any, in the presence of the accused who might have had opportunity to cross-examine these witnesses.
17. This would clearly furnish fresh material to the Court to come to a different conclusion. An other possibility also cannot be excluded, namely, that even before the examination of the witnesses the Court may, on proper appreciation of materia! placed before it, come to the conclusion that Hhe opinion of thq police officer was mala fide or was obtained os a result of misrepresentation, fraud or other such taint. On such a finding, though tentative, the Court can refuse to rely on the conclusion of the police officer. In this context, the Court may also examine the reasons mentioned by the police officer for coming to such a conclusion. It is clarified that these two examples are, by no means, exhaustive of the situations when the Court would not follow the conclusion reached by the police officer. The examples might be multiplied but under the rider that the conclusion by the police officer would continue to influence the bail matter in Court subject to a finding by the Court otherwise on fresh and or better material.
18. There is considerable case-law in Pakistan on the question of relevancy and influence of such an opinion by the police and/or the fact that the name of an accused person has been placed in column No. 2 of the challan report, for determining the question of bail. It is not necessary here to examine all the cases in any detail. One of the judgments on this question is by me in Criminal Miscellaneous No. 6197 of 1970, in which the cancellation of bail petition is now being considered and on which I have already modified my view. Incidentally, Mr. Saleern had been appeared for the accused whose right to remain on bail is now being defended by him. Some of the other cases may be mentioned. They are: Ch. Abdul Malik v. State (1), Haji Rehmat Khan v. The State (2), Ibrahim v. The State (3), Wali Muhammad v. Mian Muhammad Akbar and 2 others (4), Rehmat Wah alias Rehman v. State and another (5), Muhammad Nawas v. Khan Muhammad and 2 others (6), Ghulam alias Gammoon and 2 others v. State (7), Baja and 2 others v. The State (8), Muhammad Ashiq v. The State (9), and Ch. Muhammad Khan v. Sanaullah and another (10).
19. In the case of Abdul Malik, their Lordships of the Supreme Court laid down the guidelines for the application of subsection (2) of section 497, Cr. P. C. in two subsequent rulings, their Lordships dealt with two different situations in the light of those guidelines. In the case of Rehmat Wah, the High Court had cancelled bail granted by the Sessions Court on the ground that even if Rehmat Ullah accused had been found innocent in three successive investigations, "yet as their opinion is not legal evidence and the charge against Rehmat Ullah is one of murder, baifcannot be allowed to him except in exceptional and special circumstances". While granting special leave to appeal, the Supreme Court granted ad interim bail. While deciding the case, it was observed as follows :-- "This seems to us to be a case in which guilt of the appellant certainly requires further investigation and inquiry to entitle
(2) 1968 P Cr. L J 1905
(4) 1969 P Cr. L J IIII
(6) PLD 1970 Lah. Ill
(10) PLD 1971 SC 324 him to bail under section 497(3) of the Criminal Procedure Code. The opinions of the Investigating Officer certainly do not constitute legal evidence but being adverse to the prosecution, they put one on an enquiry as to the veracity of the prosecution case."
(3) appears to be a misprint in the report for (2). (Underlining* is mine.)
20. In the case of Ch. Muhammad Khan, a learned Judge in the High Court had observed that in view of certain facts mentioned in the report submitted by the police under section 173, Cr. P. C., the case of the accused was covered by subsection (2) of section 497 and as further inquiry was necessary the accused was released on bail. In the Supreme Court, apart from other questions their Lordships considered the question of the stage till when subsection (2) of section 497 may be attracted and held as follows:-- "The remark by the learned Judge that "the evidence on the police record ex fade shows that the case of the petitioner requires further inquiry" was equally unwarranted. The final report under section 173, Cr. P. C., having been submitted in the Court of the Inquiry Magistrate and the statements of a number of witnesses recorded by him section 497(2), Cr. P. C. was not attracted.
21. There is no other provision in law under which a further inquiry could be made by the police."
22. (Underlining* is mine.)
23. Reading these rulings together, with respect I may point out that they further clarify the law on the point as follows Firstly, that if the police finds the accused innocent but further investigation and/or inquiry is necessary, this fact "entitles" the accused to bail under subsection (2) of section 497; Secondly, that the police opinion, when adverse to the prosecution, put one "on an inquiry" as to the veracity of the prosecution case; and Thirdly, that in these circumstances the "entitlement" to be released on bail is subject to further inquiry which, to re-state the view of their Lordships themselves in the case of Ch. Muhammad Khan, would end after the submission of the challan under section 173, Cr. P. C., and examination of witnesses by, an Inquiry Magistrate in commitment proceedings in cases triable by Sessions C6urt.
24. I may respectfully add that the examination of formal witnesses only would not satisfy the requirement. The examination should be of material witnesses so as to answer the need for inquiry.
25. In other words, in order to deprive the accused of the entitlement under firstly above, there must be some tangible material before the Inquiry Magistrate in addition to the material which was before the police, and such material can be the statements of the material witnesses '(Here in italics] recorded in the presence of the accused. With respect, I may point out what I have held above, while interpreting subsection (2) of section 497, is in consonance with these guidelines laid down by the Supreme Court.
26. The last question to be answered is as to what is the effect of the commitment order, in cases where by the application of the law, as interpreted above, the accused is entitled to take benefit of the opinion of innocence expressed in his favour by the police. Syed Ali Raza has vehemently contended that as lately held by the Supreme Court, the commitment order per se is sufficient to refuse bail to a person who is accused of capital offence. I will presently refer to the pronouncements of the Supreme Court in this behalf. Mr. Saleern, in reply, has referred to some English cases to show that the pronouncements of Supreme Court of Pakistan are to be read as relevant only in the facts of the cases before the Supreme Court, and this Court is neither bound by them nor should readily accept their relevancy in other cases. The cases relied upon by him from foreign jurisdiction are:-- Qualcast (Wolverhampton) Limited v. Haynes (1959)
27. All E R 38 ; R. v. Home Secretary ex parte Greene (1941) All E R 104; Great Western Rail Co. v. Mostyn (Owners) Mostyn 1927 AllER 113 ; Charles R. Davidson & Company v. M' Robb or Officer (1918) A C 304 ; Quinn v. Leathern (1901) A C 495 ; In re : Featherstone's Trusts (1883) Ch. D 118; Punjab Co operative Bank Limited, Amritsar v. Commissioner of Income-tax, Lahore AIR 1940 P C 230.
28. Some rulings of our own Supreme Court have also been cited. They are Hamida Bano v. Ashiq Hussain and others (1), Nur Elahi v. The State and 2 others (2), and Fazal Elahi v. The Crown (3). On the basis of the observations in these judgments, particularly those from English Courts which are, no doubt, very strong, learned counsel tried to argue that unless this Court comes to a definite conclusion on the principles laid down in these cases, that a certain observation is a law declared by the Supreme Court, it should "completely disregard" it in criminal cases because consequently it leads to injustice. In this connection, he referred to a warning given by the House of Lords in the case of Qualcast (Wolverhampton) Ltd. The relevant observation by Lord Denning reads as follows: -- "Such cases all serve to bear out the warning which has been given in this House before : "We ought to beware of allowing tests or guides which have been suggested by the Court in one state of circumstances, or in one class of cases, to be applied to other surroundings..................... " and thus by degrees to turn that which is at bottom a question of fact into a proposition of law. That is what happened in the cases under the Workmen's Compensation Act and it led to a "wagon [19] load of cases."........................................................................ "Let not the same thing happened to the common law, lest we be crushed under the weight of our own reports."
29. According to Mr. Saleern, these observations fully apply to the state of case-law in our country. I do not dispute the wisdom of the above observation. It, indeed, should act as a warning in Pakistan also. I also agree with the general proposition canvassed by the learned counsel.
30. The question in this case, on which arguments have been addressed, is whether the Supreme Court of Pakistan has declared any law as to the effect of the order of commitment on the question of bail. The answer will have to be found on the consideration of the rulings which have been cited before me on this subject. They are:-- Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC lu03; Nadara v. Jamalt Khan and another PLD 1968 SC 310; Ghulam Farid and another v. The State 1969 SCMR 80; Ahmad Bakhsh v.
31. The State 1969 SCMR 266; Muhammad Shafiq v. Muhammad Hanif and another 1970 SCMR 143; Nasir Ahmad v. The State PLD 1971 SC 174; Jan Muhammad v. The State 1971 SCMR 351; Ghulam Rasul v. Ghulam Muhammad and others PLD 1971 SC 128.
32. It is not necessary to discuss the rulings earlier to the case of Muhammad Shafiq because Hamoodur Rahman, C. J., who wrote the judgment in that case, commented upon all those rulings.
33. It has to be seen whether dr not their Lordships did declare the law on the question of bail after commitment, in the cases of Muhammad Shafi, Nasar Ahamad and Jan Muhammad and Ghulam Rasul. After the review of case-law, the learned Chief Justice was pleased to observe as follows, at page 146 (et seq), of the report in case of Muhammad Shafiq,:-- "It seems, therefore, that the subsequent view of this Court is clearly to the effect that where a prima facie case, upon the taking of evidence, is found to exist, that is also ordinarily sufficient for holding that there are reasonable grounds for be* lieving that the person charged with the offence is guilty.
34. This view also appears to find support from the language of the section itself. It will be observed that under section 497 of the Criminal Procedure Code all that is necessary is to see is whether "reasonable grounds" exist. Now "grounds" are entirely different from "evidence". "Grounds" may or may not consitute "evidence" but, nevertheless, they can be taken into consideration. Under section 208, Cr. P. C., however, the Magistrate has to take evidence and under section 210, Cr. P. C., upon such evidence being taken and upon such examination, if any, being made of the accused, as is considered necessary, the Magistrate has to be satisfied that there are sufficient grounds for committing the accused for trial, before he can frame a charge, declaring with what offence the accused is charged. :i Pakistan Criminal Law Journal [Vol. V To arrive at the state of mind required bf section 210 of the Criminal Procedure Code one has as of necessity, to go beyond the stage of mere belief as to the existence of "reasonable grounds '. The Magistrate has to be "satisfied" that a prima facie case has been made out. It is difficult, therefore, to appreciate as to how it can possibly be argued that even though a prima facie case has been made out, there are no reasonable grounds for believing the accused to be guilty."
35. It is interesting to note that Mr. Saleern himself appeared before the Supreme Court in this case and had argued "that the High Court was wrong in taking the view that since the Magistrate before whom the private complaint hau been filed had directed the issuance of non-bailable warrant after taking evidence and coming to a finding that a prima facie case had been made out, no bail could be granted". He then relied on the ruling of the Supreme Court in the case of Muhammad Ayub to contend that the finding of a prima facie case even as a result of order of commitment was not enough to refuse bail. 1a other words, then his contention was that the Supreme Court did lay down the law on the question involved, in the case of Muhammad Ayub which favoured his contention. As is apparent from the above quotation, the Supreme Court did not specifically reject the argument of the learned counsel on the basis of the ruling in Muhammad Ayub's case but held that "the subsequent view" of the Supreme Court did not adopt the ruling in the case of Muhammad Ayub, and disposed of the argument of Mr. Saleern by observing that "for the reasons, given above, we are of the opinion that the contention advanced by the learned counsel is not tenable in view of the subsequent opinions of this Court which have been adverted to earlier".
36. (Underlining* is mine.) It is clear that the judgment in the case of Muhammad Ayub was cited before their Lordships in support of the proposition that they had declared it as a law that an order of commitment not enough to refuse bail because it could not be equated with a finding that there appear reasonable grounds for believing that an accused is guilty of an offence punishable with death or transportation for life. It also appears that their Lordships, after review of some of their own judgments, came to the conclusion that the earlier declaration of law could not be followed because of the subsequent 'view' or 'opinions'. The above quotation from Muhammad Shafiq's case, in my view, declares the changed position of law. The judgment in the case of Muhammad Shafiq is dated 13-10-1969. Ghulam Rasul's case was decided 6n 14-11-70. In the case of Nisar Ahmad which was decided on 18-11-70 in the judgment written by Sajjad Ahmad, J., the ruling in the case of Muhammad Shafiq was considered and commented upon. It needs to be mentioned that in this case one of the learned Judges (Wahiduddin Ahmad, J.) was also a party to the judgment in the case of Muhammad Shafiq. Therefore, whatever is observed in the case of Nisar Ahmad in respect of the ruling in Muhammad Shafiq's case is *[Here in italics] to be treated by the subordinate Courts as the best interpretation thereof, lt is as follows :-- "The decision of this Court in Muhammad Shafiq's case, referred to by the learned Chief Justice in his order under challenge, does not foreclose the question of grant of bail to an accused person after his commitment for trial under section 210, Cr. P. C. Under section 220 of the Code, the commitment of an accused person, during or until the trial, is subject to the provisions of bail contained in the Code, which means that where, even at the time of commitment, it appears that any of the provisions of section 497 are attracted to allow bail to the accused, he need not be committed in custody to stand his trial. One patent instance, for example, would be where an accused may be found to be entitled to the benefit of proviso to subsection (1) of section 497 on the ground of tenderness of age, womanhood, sickness or infirmity. Another would be where in terms of--subsection (2) of section 497, the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but commits him nonetheless for trial, because there are sufficient grounds for further inquiry into his case. Pending such a further inquiry into his guilt, the accused shall be released on bail.
37. As held in Muhammad Shafiq's ca,e under section 210 of the Code, a Magistrate, after taking evidence and examining the accused, has to be satisfied that there are sufficient grounds for committing the accused for trial. To arrive at this state of mind, ordinarily he has, of necessity, to go beyond the stage of mere belief as to the existence of reasonable grounds and has to be satisfied that a prima fasie case has been made out against the accused, and when a prima facie case has been made out, it cannot be said that in spite of it, there are no reasonable grounds for believing the accused to be guilty. It is, however, open. to an accused person to pray for his bail even after his commitment by showing that his commitment has not been made to rest on any reasonable grounds, and that the committing Magistrate instead of applying his mind to the case to reach a conclusion that a prima facie case has been made out, has merely transmitted the allegations of the prosecution, with no tangible evidence to support them, for trial by the Sessions Court. In such an event, apart from applying for his bail, the accused can ask for the quashment of such a commitment. In a situation like this, in order to justify the continued detention of the accused in prison, it would be for the higher Courts to see whether the commitment order does disclose that satisfaction of mind on the part of the committing Magistrate, which is necessary for committing an accused person for trial on the basis that a prima facie case for an offence punishable with death or transportation has been made out against him."
38. With respect, it is pointed out that during the arguments in some cases in the High Court, I have noticed a visible impression in the minds of some learned counsel as if there is some clash of opinions in the two rulings. In my view however, there is none. In the case of Muhammad Shafiq, it was held that ordinarily an order of commitment is sufficient for holding that there are reasonable grounds for believing that the person charged with the offence is guilty. This very expression (ordinarily) was used in the case of Nadara. The choice of the expression is not without wisdom.
39. The intention and meaning is obvious, namely, that despite the ordinary rule, there can be possible exceptions. The learned Chief Justice visualized an exception in a case which would also justify an application for quashment of the commit* ment "and in such a case it would be more appropriate for the accused to apply for the quashment of the commitment rather than merely to ask for bail."
40. In other words, what his Lordship meant was that if in spite of the commitment order the accused can make out a case for quashment of the commitment, bail could not be refused to him. In the case of Nisar Ahmad, this exception has again been noted in a slightly different language and cases have been visualized where the order of commitment might be prima facie bad. This is noted in Nisar Ahmad's case as an important exception.
41. The second exception is the application of the proviso to subsection (1) of section 497, Cr. P. C., on the ground of tenderness of age, womanhood, sickness or infirmity.
42. The third is the application of subsection (2) of section 497, i. e., "when the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but commits him nonetheless for trial, because there are sufficient grounds for further inquiry into his case. Pending such further inquiry into his guilt, the accused shall be released on bail".
43. The fourth composite exception is also mentioned, namely, where "it appears that any of the provisions of section 497 are attracted to allow bail to the accused". Such a possibility can clearly be visualized for example, under subsection (4) of section 497 when, after commitment and after the recording of the evidence during the trial but before the judgment is delivered, "the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence". It appears that their Lordships did take note of certain possibilities and other exceptions in Nisar Ahmad's case which were not specifically noted in Muhammad Shafiq's case.
44. It is well established proposition of law (see section 215), Cr. P. C.) that commitment cannot be quashed except on "a point of law". Satisfaction for "commitment" (section 210) is not the same as "presumption" of guilt (section 254). The committing Magistrate has a limited jurisdiction while dealing with the question of guilt or otherwise of the accused at the stage of commitment. For example, a situation not of uncommon occurrence can arise when the police has challaned one or one set of accused persons and has adduced good evidence against them while the complainant, by means of a separate complaint, in the same case prosecutes, during the same proceedings, another accused or set of accused persons and adduces evidence of equal strength against them.
45. The committing Magistrate, admittedly, would have no jurisdiction to decide as to which of the two versions is correct and, under the law as has often been declared, he is bound to commit both the sets of accused persons for trial and would have to leave the question of guilt or otherwise of each one of them to the trial Court. In such circumstances, it cannot be said that while doing so he comes to a conclusion that "there appear reasonable grounds for believing" that all the accused (both sets) are guilty of the offence; nonetheless there can be sufficient grounds to commit them to stand the trial. In such like situation, the mattermay be covered by subsection (2) ofsection497 read with section 220, and the Magistrate would be within his jurisdiction to release an accused on bail against whom is unable to find sufficient grounds for believing that he is guilty of such an offence, "but commits him nonetheless for trial".
46. In the light of the above discussion, I do not agree with Mr. Saleern that the Supreme Court has not declared the law on the question involved. It is, however, my considered opinion that this declared law has not "foreclosed the question of grant of bail to an accused person after his commitment for trial under section 210, Criminal Procedure Code." The rule, no doubt, is that "ordinarily", a commitment order would be "sufficient" for holding that there are reasonable grounds for believing that the person charged with the offence is guilty, but there can be exceptions to this rule. Four of them only have been enumerated above. It needs to be mentioned further that this view of the law on the question of bail after commitment has not been changed in the case of Jan Muhammad, because in the last para, of the judgment by Hamoodur Rahman, C. J., and Waheeduddin Ahmad, J., their Lordships observed that they did not see the necessity of "reconsidering" their previous decision on this question. Their previous decision, as discussed above, in the case of Muhammad Shafiq was only interpreted and explained in Nisar Ahmad's case.
47. The law, as interpreted above, is now to be applied to the facts of the two cases under consideration. In the first case, the committing Magistrate has not so far recorded the statements of the witnesses. It cannot be said that during the inquiry any material different from what was before the police has been brought to the notice of the Court so as to deprive the accused- respondents of bail already granted to them by this Court. In other words, there is no material for the time being to come to a contrary conclusion, namely, that reasonable grounds exist to believe that they are guilty of an offence punishable with death or transportation for life. As discussed above, whep material witnesses have been examined before the committing Magistrate and if at that stage a case for cancellation of bail is made out, the complainant would then be at liberty to move the Court for cancellation of bail. Both the High Court and the Court of Session, in these circumstances, would have the jurisdiction to cancel the bail. It would, therefore, be appropriate that, if so advised, the application for cancellation should first be moved in the Court of Session. The only fact that the bail was originally granted by this Court and it refused to cancel the same in these proceedings, shall not be a bar to the Sessions Court passing a proper order under subsection (5) of section 497, Cr. P. C. with the above remarks, the petition for cancellation in the first case is dismissed. Before coming to the second case, it needs to be commented that I have not been persuaded to cancel the bail in this case on the ground that mis-statements were made in this Court. It is an admitted fact that D. S. P. who is also 'the officer' mentioned in section 497(2), gave a categorical opinion that the respondents are innocent. Even if the first officer, who investigated the case, came to the conclusion that the respondents were to be arrested, that would not necessarily show that he had come to a definite conclusion that they were guilty. It is now stated that the third officer did not investigate the matter in depth and probably did not express any opinion. In these circumstances, it cannot be said that the learned counsel for the State, who earlier appeared before me in this case, made an intentional wrong statement in this behalf. Be that as it may, the final report by the D. S, P., who also investigated the case, is in favour of the respondents and they could take due benefit of that under subsection (2) of section 497. The other subject of allegedly wrong statement is the summoning of the accused-respondents by the committing Magistrate to face inquiry. It is not denied that no formal order was passed by the learned Magistrate in this behalf. He only noted the presence of the respondents in Court. There can be two opinions on the interpretation of the order of the learned Magistrate. Therefore, it cannot be said that a wrong statement was made in this behalf in the High Court intentionally. On the third subject also, there was no attempt on the part of the accused to intentionally mislead this Court. After the order releasing them on bail, their learned counsel brought the fact to my notice first orally and then through written application. As I had not granted the bail on this, consideration alone and the main ground which influenced my mind was the final opinion of the police expressed by the D. S. P., therefore I did not even consider it necessary to reopen the matter. There is no justification for coming to the conclusion that the final opinion of the police in favour of the respondents was obtained by fraud or was mala fide. No material has been relied upon this behalf.
48. The only argument by the learned counsel that some of the reasons in the report of the D. S. P. could be fallacious, is not enough to come to a conclusion that he acted mala fide because the learned counsel himself admitted that some other reasons in his report could not be brushed aside as flimzy or insubstantial. The allegation against the respondents of misuse of concession of bail has been denied in the counter-affidavits filed on behalf of the respondents. Thus there remains mere assertion-in this behalf in the affidavits and reports to the police and denial thereof by the respondents. Therefore, bail cannot be cancelled on this ground either.
49. In the second case, no doubt the material evidence has been recorded by the learned committing Magistrate and the accused have been committed to stand trial. Ordinarily, this should be considered as sufficient to come to a conclusion that reasonable grounds exist to believe that they are guilty of the offence/s charged. But, as discussed earlier, the rule is not without exceptions. The commitment order read by the leamed counsel for the complainant makes a very brief mention of what the eyewitnesses stated against the respondents. The copies of the statements of the witnesses have not been produced. It cannot be said that the allegations against all the respondents are similar. The bail was granted to the respondents on the finding that there do not appear reasonable grounds to believe that they are guilty of the offence/s charged. Therefore, to come to a contrary conclusion that such grounds do exist, the consideration of the statements made by material witnesses is essential. The case is already before the learned Sessions Judge who has already fixed a date to start the trial. In these circumstances, I do not consider it to send for the records and to examine the question in the High Court. The learned Sessions Judge is, under subsection (5) of section 497, himself competent to cancel the bail. I, therefore, in these circumstances, dismiss the petition filed in the High Court in this behalf, with the observation that the petitioner would be at liberty to move the learned Sessions Judge for cancellation of the bail who, when moved, will apply the law as interpreted above and will be within his competence to pass a proper order under section 497(5), Cr. P. C. The fact that this Court earlier granted bail or that it has now refused to cancel the same, shall not be a bar for him to pass a proper order. .