This is a petition under section 497 (5), Cr. P. C. By Abdul Shakoor, petitioner, for the cancellation of bail granted to Ghulam Rasool and others, respondents Nos. 1 to 6.
2. The brief facts relevant for the disposal of this petition are that Ghulam Rasool, Muhammad Yousaf, Shahab Din and Zahid Khan, respondents Nos. 2, 4, 5 and 6, were allowed bail by the trial Magistrate, whereas Muhammad Younas, respondent No. 3, was allowed pre-arrest bail by an Additional Sessions Judge. The case against respondents Nos. 2 to 6 in the first instance was registered under section 452/148/149, P. P. C., when the said respondents were allowed bail.
Subsequently, sections 324 and 342, P. P. C. Were added. Abdul Shakoor, petitioner, who was the complainant, on 18-10-1986 moved an application under section 497 (5), Cr. P. C. For the cancellation of bail allowed to respondents Nos. 2 to 6.
On 1-11-1986, the trial Magistrate cancelled the bail of all the respondents except that of Muhammad Younas, respondent No. 3, on the ground that as he had been granted pre-arrest bail by the Court of Sessions, the complainant should move the Sessions for the cancellation of his bail.
The trial Magistrate also ordered respondents Nos. 2, 4, 5 and 6 to be taken into custody with respect to offences under section 342,1354, P. P. C. Responaents Nos. 2 to 6 then filed a petition for pre-arrest bail in the Sessions in respect of offences under section 452/342/354/148/149, P. P. C, which was heard by a learned Additional Sessions Judge of Lahore, who on 19-11-1986, allowed the same. The learned Additional Sessions Judge allowed pre-arrest bail to the respondents on the basis that all the offences, except that under section 452, P. P. C, were bail able and as the Sessions Judge, when first allowing bail, had treated the offence under section 452, P. P. C. As one calling. For further inquiry, he treated the case as one covering bail able offences and applying the rule stated in Sardar Khan v. Muhammad Fazal etc. (1) held that their bails could not be cancelled, even if it were assumed that they had tried to tamper with the prosecution evidence or had given threats to the complainant and his witnesses.
3. I have heard the arguments of the learned counsel for the petitioner, the State and the respondents and have perused the record. One of the offences imputed to the respondents is section 452, P. P. C. Which is non-bail able. Earlier, when bail was granted to respondents Nos. 2 to 6 in respect of offences under section 452/148/149, P. P. C. The learned Additional Sessions Judge held that the case was one of further inquiry. The crucial question, therefore, that arises is whether a bail granted under section 497 (2), Cr. P. C. Can be cancelled under section 497 (5) on the ground that the accused are tampering with the prosecution evidence or threatening or subborning the witnesses. In support of the view that such bail cannot be cancelled, Sardar Khan's case has been cited.
4. Section 496, Cr. P. C. Deals with bailable offences. Under this section, 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 of 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. Section 497, Cr. P. C. Deals with nonbailable offences. Under subsection
(1) of section 497, 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. Then follow four provisos, which deal with the exceptions to this sub-rule. Then comes subsection (2) of section 497 which states that 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 has 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. Under subsection (5) of section 497, Cr. P. C., a High Court or Court of Sessions 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. What is to be noted is that section 496, Cr. P. C. Confers an absolute right on an accused to be released on bail, with no provision imposing any liability for his rearrest, whilst section 497, Cr.P.C. Confers no absolute right to bail, which privilege is discretionary, with in provision imposing a liability for his rearrest and committal to custody. Under section 4 (1)
(b), Cr. P. C. Bailable offences are those which are shown as bailable in the Second Schedule of the said Code, or which are made bailable by other laws, whereas non-bailable offences are those which are not so shown in the Second Schedule or which are not made bailable by other laws.
Bailable offences are basically those ini which the State does not desire the custody of the accused pending the disposal of their cases, whereas non-bailable offences are those where such custody is desired, on grounds, of public policy, such as to ensure a fairl trial, or to prevent possibility of commission of further offence, subject to such provisions as to bail as may specially be provided by law, where such custody may be dispensed with. Thus, an order releasing a person on bail in a non-bailable offence impliedly binds him to the principles and limitations implied and flowing from the grant of such a concession, it being understood that but for the concession, he could be in custody--- This is the reason why under section 496, Cr. P. C., there is no provision for the cancellation of bail, whereas under section 497, Cr. P. C. There is such a provision, namely, subsection (5). This subsection does not make any exception to cases covered by subsection (2) of section 497, Cr. P. C., as opposed to those covered by subsection (1) of the same section. It is true that whilst releasing a person on bail under subsection (2) of section 497, Cr. P. C., a Court comes to the finding that there are no reasonable grounds to believe that the accused has committed a non-bailable offence, but the finding is only tentative for the purpose of bail and does not convert the case figuratively to one relating to a bailable offence. The mere fact: that the accused is released as of right under subsection (2) of section 497, Cr. P. C., because the word "shall" appears in this subsection, does not exempt him from the application of subsection (5) of section 497, Cr. P.
C., should he transgress the principles and limits generally recognized and, accepted by Courts as applicable to him, when enjoying such a concession. The object of retaining a person in custody in non-bailable cases is to prevent the process of a fair trial from being allowed to be defeated and to prevent possibility of commission of further offences by the accused see Muhammad Iqbal v.
The State (1). It cannot be imagined that in serious cases dealing with non-bailable offences, an accused granted bail under subsection (2) of section 497, Cr. P. C. Enjoys a licence to threaten the prosecution witnesses, or to subborn them, or to interfere with the course of justice, or to make it impossible for witnesses to appear in Court: to give their evidence voluntarily without fear or anxiety. Subsection (5) of section 497, Cr. P. C. Has been enacted to cover bails granted within the total sweep of subsections (1) and (2) of section 497, Cr. P. C. In these circumstances, I cannot help but respectfully disagree with the view stated' in Sardar Khan's case (supra). In my view, bail granted under subsection (2) of section 497, Cr. P. C. Can also be cancelled under subsection (5) of a
(1) PLD 1963 Lab. 279 section 497, Cr. P. C., if the subsequent conduct of the accused shows that he has forfeited his right to the concession.
5. In view of the above, this petition is accepted, the order of the learned Additional Sessions Judge of Lahore dated 19-11-1986 granting prearrest bails to the respondents is set aside and the two petitions for pre-arrest bail filed by Ghulam Rasool and others v. The State and Muhammad Yousaf and another v. The State are remanded to the learned Additional Sessions Judge, Lahore, for de novo hearing, in the light of the law declared, as stated above. The respondents shall remain on pre-arrest bail on the bonds hithertofore filed by them in the Sessions, till their petitions are disposed of.