This order shall dispose of Criminal Revision No. 723 of 1971 (sue motu) and Criminal Miscellaneous Petitions Nos. 2810/11 2634/11, 2635/11 and 2636/8 of 1971, preferred by the State fog the cancellation of bail granted to Bashir alias Chitta respondent.
2. An occurrence took place on the night between 21st/22ne April 1965, within the area of Old Anarkali Police Station Lahore, and report was lodged on 22nd April 1 Y65, undo sections 395 and 397 of the Pakistan Penal Code. Another occurrence took place on the night between 22nd/23rd April 1965 within the area of Arifwala Police Station and report was lodge on 24th April 1965, under section 457 of the Pakistan Penal Code. Yet another occurrence took place on the night between 23rd/24th April 1965, within the area of Burewala Poles Station However, report with regard to this incident was lodged on 21 July 1965under section 458 and 380 of the Pakistan Penal Cede. The last incident took place on the night between 27th/ 28th April 1965, within the area of Ishhra Police Station, and report was lodged an 28th April 1965, under sections 395 and: 197 of the Pakistan Penal Code.
3. During the course of investigation suspicion fell upon the respondent and others. They were arrested. The respondent offered to become an approver and he was thus tendered pardon in the cases relating to Old Anarkali, Burewala and Ichhra Police Stations. It appears that the trials could not proceed for sometime as almost all the accused had been bailed out anti they did not put in appearance. Shahab-ud-Din, one of the accused, was said to be confined in Jhang Jail as condemned prisoner. He has since been executed. Faced with this situa--tion, the respondent sent a petition through jail bearing Criminal Miscellaneous No. 5943 of 1967. It was placed before Mr. Justice Shaukat Ali, who directed the Magistrate by order dated 2nd April 1968, to proceed with thest case day to day and report its progress to the Court. The report dated 11th April 1968, from the Magistrate indicated that the accused were not appearing in the Court and every effort was being made to secure their attendance. Since no trial was in progress, and there was not likelihood of early disposal of the case, his Lordship granted bail to the respondent. This case is reported as 1968 P Cr. L J 1357. The order was made on 22nd May 1968. Subsequent thereto, the respondent filed petitions for the grant of bail relating to Arifwala, Ichhra and Burewala cases. He also filed a habeas corpus petition. Applications bearing Cr. Misc. Nos. 370 of 1970 relating to Burewala case and 372 of 1970, relating to Arifwala case, were allowed by Muhammad Afzal Khan, J. On 5th February. 1970, mainly on the ground that there was no prospect of early disposal of the cases and the petitioner, now respondent, had been in the jail for nearly five years. The last application relating to Ichhra Police Station bearing Cr. Misc. No. 371 of 1970, came up before me for disposal and it was allowed.
The respondent was admitted to bail.
4. Awan Muhammad Hanif, an Advocate of his Court, who is a accused in all the aforementioned cases, moved an under section 561-A of the Code oaf Criminal e for quashment of proceedings against him in Burewala case (Criminal Miscellaneous No. 2011 of 1970). One of the grounds taken by him was to the effect that though the caseswere registered in1965, he had beesummoned to appear as an accused in Burewala case by Malik Wazir Hussain, Section 30 Magistrate, Vehari, in April 1970, after more than five years:, Thus, the sword remained hanging over his head for a long time, which amounted to harassm ent. The petition was admitted. However, on 12th February, 1971, my learned brother Ataullah Sajjad, J. While disposing of the petition, directed that the case of the petitioner be separated from the other accused, whose presence could not be secured within a month" and the Magistrate was also directed to proceed to record the evidence. It was also pointed out, by his Lordship that the approver, who was granted bail, was a: not putting in appearance and if he did not appear with) months, Awan Muhammad Hanif would be at liberty to move again for the quashment of the proceedings. The Magistrate was asked to send a report about the progress of the case.
5. The order of his Lordship was conveyed to the Magistrate and his report dated 6th July 1971, is to the effect that though case of Awan Muhammad Hanif was separated on 17th y 1971, the' approver, who was summoned many a time had a turned up. Warrants of his arrest had been issued. The case was pending for want of his appearance. This letter was placed before Mr. Justice Ataullah Sajjad and the following order was passed- "If the approver does not appear on the next date of hearing, the Magistrate shall issue on-bailable warrants. High Court office shall also issue bailable warrants against him for appearance in this Court to show cause why the bail granted to him should not be cancelled."
This order was treated by the office as Criminal Revision No. 723 of 1971.
On 26th July 1971, Mr. Justice Ataullah Sajjad directed District Magistrate, Muzaffargarh, to cause the approver to arrested and produced before the Magistrate, who would admit as to bail, to his satisfaction for appearance in the High Court 4th August 1971, to show cause, why the bail granted to him 7y this Court should not be cancelled. The District Magistrate, vide his letter No. 1584 dated 3rd August 1971, reported that a errant of arrest against the respondent was issued and sent tax local police for service. It could not be served. It was sorted that the respondent was not the resident of Chak No. 134/TDA. On 4th August 1971, my learned brother passed following order:- "Warrants issued by this Court have come back with a report that the residence of the approver is not in Chaff No. 134/TDA. It is not clear whether the learned Magistrate issued non-bailable warrants against the approver or not, if so, with what result. Call for a report from the learned Magistrate. Office shall report, as to what is the correct address of the approver.------ District Magistrate informed this Court vide his letter No.1608/RDR dated, 8th August 1971: -- "The man has been traced out to be the resident of Chak No. 325/TDA, but has been reported that he was not present in the Chak and had gone to Multan since 3/4 days. It is therefore, requested that an opportunity may kindly be given for his production and the next date fixed in the case be intimated well in time.
The case was then fixed fur 27th August 1971. On the last mentioned date, the petition came up for hearing before Mr. Justice Saad Saood Jan, who allowed one month's time to the, District Magistrate for the execution of warrants. The case was adjourned to 27th September 1971. The respondent was arrested on 19tb September 1971, and produced before Mr. Justice Saad Saood Jan on 30th September 1971. It came to the notice of his Lordship that I had granted bail to the respondent in one of the cases. So, it was directed that the revision petition be placed before me.
However, as has been indicated above, I was the last to grant bail to the respondent. He had already been admitted to bail in three cases either by Mr. Justice Shaukat Ali or by Mr. Justice Muhammad Afzal Khan.
It appears that the State had already moved an applica--tion for the cancellation of the bail of the respondent in the Ichhra case on 3rd September 071, (Criminal Miscellaneous Petition No. 2810/11 of 1971). However, when Khawaja Muhammad Afzal, learned counsel for the State appeared before me on 7th October 1971, he disclosed that the respondent though an approver, was already on bail in three other cases. He intended to move applications for the cancellation of bails in those cases.
This matter was adjourned. Subsequently, three more applications were filed and were admitted to hearing.
8. Though the arguments started, the original files were not before me and a long time bad to be spent in getting them. In fact, it was reported that the judicial record of the Arifwala case was not traceably, However, this is not correct. It also came to light that the record relating to Old Anarkali and Ichhra cases was lying in this Court in connection with the quashment applications preferred by Awan Muhammad Hanif. Thus these were received from the office on 13th January 1972.
Arguments were closed and judgment was reserved on 15th February 1972.
9. When I started dictating order, I felt the necessity of questioning Awan Muhammad Hanif accused, who used be present during these proceedings of his own accord, whether he had preferred any application for quashment of proceedings of any other case. He was summoned and heard. It appears that he has alto moved two other petitions for quashment. However, at present, I have nothing to do with those applications.
10. Before, proceeding further, it may be stated that the respondent was produced before a Lahore Magistrate on 29th July 1965, and his statement under section 164 of the Code of Criminal Procedure, was recorded. It appears from the police diaries that it w s on the same day that he was made an approver in three cases, viz. Old Anarkali, Ichhra and Burewala though he made disclosure with regard to all the four cases. Tlndoub--tedly, pardon could be granted by the Lahore Magistrate to the respondent with regard to Old Anarkali and Ichhra Police Station cases. However, Miss Surraya Azim, Magistrate 1st Class, Lahore, who granted pardon to the respondent, could not grant the same to him with regard to the Burewala case, as is evident from the proviso to subsection (1) of the section 337 of the Code of Criminal Procedure: - "Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is a Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof."
A Lahore Magistrate, therefore, had no jurisdiction to grant pardon to an accused person and make him an approver to a case relating to Multan District, as that would be beyond his jurisdiction.
However, nothing turns upon this in the instant proceedings. Only two questions arise for determination. The first would be in relation to the order of my learned brother Ataullah Sajjad, J.
That the approver, when apprehended, should be produced in the High Court "to show cause why the bail granted to him should not be cancelled". The order was made for the reason that the respondent, who belonged to Chak No. 134/TDA was not found at the place of his residence, when the warrants were issued for his apprehension. Subsequently, it came to light that he was living in Chak No. 325/TDA, and probably it is there from that he was apprehended. The mere fact that a resident of one place shifts to another by itself would be no ground to cancel his bail, especially, when a period of more than five years had elapsed between the commission of the offence and the issue of warrants against him, unless it is established that he had shifted to Chak No. 325/TDA with a view to hide himself. Since no such indication is available on the record, I would not be inclined to cancel the bail granted to the respondent on this ground.
11. The next question that would require consideration is, whether subsection (3) of section 337 of the Code of Criminal Procedure, is a complete bar to the grant of bail to an approver until the termination of the trial. This question came up for consideration in a number of cases. In the case of Abdus Sailor v. The State (PLD 1966 Lah. 549). Nazeer Ahmad Mahmood, .I. Declined to grant bail to the petitioner, who was being detained in custody as an approver in three cases involving offence sunder sections 379/411, 467/468, 42, /471 and 420/468 of the Pakistan Penal Code. The main contention of the approver for the grant of bail was that he had been in jail for about a year and six months, whereas six other accused involved in these cases, had been released on bail.
They were interested in causing delay in the trial. His Lordship observed:- "An approver, after accepting the pardon tendered to him, ceases to be an accused person and has to appear as a witness so long as he remains an approver."
L was also held:-- "The plain reading of subsection (3) of section 337, Criminal Procedure Code, the relevant mandatory provision, admits of no other construction than that an approver in custody, so long as he retains that character, shall have to remain in detention till the determination of the trial of the case or cases in which he has become an approver."
It was also observed that neither section 497, nor section 498 of the Code of Criminal Procedure had any application to him.
The same view was taken by my learned brother Muhammad Afzal Zullah, J. In the case of Nailr Ahmad v. The State (1970 P Cr. L J 866). The approver, who had applied for the grant of bail under section 498 read with section 561-A of the Code of Criminal Procedure, was not allowed bail. In the case of Rehmat Masih v. The State (P 'L D 1968 Lah. 1030) a Division Bench of this Court, took the same view. It was observed: "The language of section 337(3), Cr. P. C. Has received the attention of numerous Courts and the consensus of opinion by all Courts is that are approver, as long as the trial of the case in which he has agreed to become an approver has not concluded, shall be kept in custody. In other words, the view taken is that an approver so long as the trial of the case in which he is an approver has not concluded, shall not be released on bail. The provision contained in section 337(3), Cr. P. C. Is, mandatory and consequently cannot be set at naught, it being based on a very salutary principle of public policy and public interest."
It was also held that an approver ceases to be an accused, the moment, he accepts pardon as be assumes the character of a witness. It was further held:-- "All the Courts - have been unanimous in holding that the power contained in section 561-A, Cr. P.
C., is ancillary and can be invoked only to prevent abuse of process of Court but only to the limited extent of power of that kind being in existence. As the power to grant bail to an approver is not only non-existent, but has been expressly taken away by section 337(3), Cr. P. C. The question .,x grant of bail under section 561-A, Cr. P. C., would not arise. Granting bail to an approver under section 561-A, Cr. P. C. Will mean setting at naught the provisions contained in section 337(3), Cr. P. C. The intention with which section 561-A, Cr. P. C. Was enacted was not to clothe the High Court with powers which could not otherwise be exercised on account of a prohibition contained in law."
Their Lordships taking into consideration the fact that even in the case of hardship, the law could not be circumvented and the High Court could not assume powers not conferred on the Court to grant bail either under section 496, 497, 498 or 561-A of the Code of Criminal Procedure.
12. Contrary view was taken in the case of Muhammad Abdul Majid v. Emperor (AIR 1927 Sind 173)
Abdul Majid, who was an approver in a case, applied, bail. His application was rejected by the learned Additional Sessions Judge. He thereupon made an application to the Sind Chief Court, as it then was the petition was heard by Percival, J. C. And Rupchand Bilaram, A. J. C. On the merits there was no disagreement between the learned Judges and they dismissed the application for the grant of bail. However, they differed with regard to the power of the High Court to grant bail to an approver. Percival, J. C. Held that in view of the provisions of section 337 of the Code of Criminal Procedure, the petitioner was not entitled to the grant of bail. Rupchand Bilaram, A. J. C. Interpreted section 337, subsection (3) of the Criminal Procedure Code as meaning that it placed ap obligation only on the Magistrate granting pardon requiring him to detain the accomplice in custody and as in no way affecting the powers of the superior Courts although he observed that the discretionary powers of the superior Courts should be sparingly exercised. In the case of A. L. Mehra v. The State (AIR 1958 Pb. 72), a Division Bench of the Punjab High- Court, India, while dealing with a similar matter came to the conclusion that under the ordinary circumstances, an approver was not entitled to bail. However, when it was brought to their Lordships' notice that the trial could not proceed because the Government had not granted sanction for the prosecution of the accused under subsection (2) of section 5 of the Prevention of Corruption Act, they held: - "It could not have been the intention of the. Legislature that a person who has been granted a pardon in respect of a particular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last 15 months whether the prisoners should be prosecuted at all. While there can be no doubt that the approver was apprehended under an originally valid and regular process duly and properly issued, his continued deten--tion in custody when the prosecution of offenders is not being seriously contemplated appears to me to constitute an abuse of the process of Court."
At another place, it was observed: "Subsection (3) of section 337, implies that there is a trial in progress and its object is to secure the evidence of the approver for such trial. If there is no such trial and no likeli--hood of such a trial then cessante ratlone lex ipsa cessar. And in such a case the inherent powers of the High Court an, to prevent the abuse of the process of the Court, be exercised in favour of a person who has been in confinement for several months."
13. The last case in point would be that of Muhammad Ramzan v. The State (1971 P Cr. L J 1150) decided by my learned brother Muhammad Afzal Cheema, I. His Lordship, after taking notice of a large number of authorities, on the question now before me, came to the following concision:- "The inferences drawn from the statutory provision consider--ed in the light of the decided case- law are Firstly the prohibition contained in sub-caluse (3) of section 337, Cr. P. C. Is not absolute but qualified and conditional. Secondly, the objects of detention of the approver till the termination of a trial also include Inter alla the safeguard of his interest. Thirdly, the prohibition would come into play only if the trial is either In sight or in progress. If, however, the commencement of the trial has already taken several years and is still not within sight the authorities are agreed that bail could be allowed to an approver on the ground of abuse of process of the Court, under section 561-A, Cr. P.
C., Inasmuch as the prohibition contained In subsection (3) of section 337, Cr. P. C., would not be applicable."
I am in respectful agreement with the latter view.
14. The respondent is admittedly not an approver in Arifwala case. The only other accused with him is Awan Muhammad Hanif, Who, as I have stated above, is an Advocate of this Court. He was readily available. There was no reason not to have proceeded with that case. 1n spite of it, the record of the case was consigned to the Record Room on 16th May 1968, for the only reason that the approver, who was an accused in several cases in Lahore, was not available. There was no justifica--tion to have postponed the trial of this case by the Sub-Divisional Magistrate, Pakpattan, when the approver could be sent for from jail. In any case, since he is not an approver in this case, the grant of bail to him on this ground cannot be challenged.
15. The judicial file of Burewala case has not been sent to this Court. It is not available. However, I find from an entry in ink at page 55 of the police file that this case had also been consigned to the Record Room for the reason, that the accused were not putting in appearance.
16. In the Old Anarkali case, there were five accused besides the approver. Out of them one, namely, Shahab-ud-Din was sentenced to death and has been hanged. A perusal of the record of this case shows that no progress has been made in it till today, because of the fact that all the accused did not put in appearance.
17. No progress seems to have been made in the Ichhra case as well. Muhammad Afzal Khan, J.
Gave a direction on 27th January 1970, in Criminal Miscellaneous Petition No. 317 of 1970, preferred by Bashir Ahmad alias Chitta respondent, to the lower Court to record the statement of Bashir Ahmad on a suitable date before 20th March 1970. It seems that it is after the receipt of this order and without caring to see, whether all the accused were present, statement of the respondent was recorded on 19th February 1970.
18. The above would show that the respondent has net at fault and though the cases are hanging fire for the last been no progress worth the name has been made about seven years, made, in any one of them, although as I have stated above, Awes Muhammad Hanif was the only other accused besides the approver, in the Arifwala case. Thus it can easily be inferred that unless the ether accused, who are on bail, put in appearance, or the cases of Awan Muhammad Hanif are separated, there would be no chance of the termination of any one of them. Subsection (3) of section 337 of the Code of Criminal Procedure therefore, does not mean that a person, who wants to become an approver should rot in jail and spend whole of his life there for fault of his own. This section would cover normal cases only. It has no application to abnormal cases, in which there s. No likelihood of an early trial, as is the position in the cases now in hand.
19. That being my view of the matter, I would decline to cancel the bail of the respondent. Since he is in jail, an intimation should be sent to the jail authorities to release him on the basis of his previous bail bonds, unless he is required to be detained in connection with any case, other than the four men--tioned above.