This is an application for bail by an approver under section 498 read with section 561-A, Cr. P. C.
2. The facts are that one Abdul Sattar was being proceeded against before a committing Magistrate in a murder case, when he absconded sometime in 1968 the petitioner is an approver in that case. He had, b then, been examined as a witness in presence of the accused before the learned Magistrate. Some effort was made in respect of the arrest of the absconder but with no success. The learned Magistrate, then by a letter, dated 17th May 1969 (Annex. `G'), sought advice from, the District Magis--trate with regard to the custody of the approver. It is stated therein that the approver had "given lull and accurate statement in support of the prosecution case in the presence of the accused" and that so far as that Court was concerned, he had fully fulfilled the conditions of the pardon granted to him. Earlier on 30th April 1969, the file of the case was consigned to tire Record Room on the only ground that the warrant issued for the arrest of the absconder had been returned unserved and that there was no hope, at that time, of the arrest of the absconder. However, on the same day, the proceedings under section 87 read with section 88, Cr. P. C. Were commenced for procuring the attendance of the absconder. It is not clear as to whether some witnesses remained to be examined during the enquiry or that the learned Magistrate ever proceeded under section 512, Cr. P. C. The statement of the learned counsel for the petitioner that the absconder has not yet been arrested, is not controverted before me by the learned counsel appearing for the State. But it is not known as to what further steps have been taken for the arrest of the accused, after 30th April 1969. The fact, however, remains that the trial of the accused has not yet concluded in any of the modes provided in the Criminal Procedure Code.
3. When asked whether the High Court has the power to grant bail to an approver, the learned counsel for the petitioner cited two decisions by a learned Single Judge of this Court. One is Bashir Ahmad v. The State (1) and the other -is an unreported deci--sion in Abdul Sattar v. The State, Criminal Miscellaneous No. 3692 of 1966, decided on 26th-January 1967. In fact, the unreported decision has been followed in the reported one. Undoubtedly, these, two decisions support the contention of the learned counsel. According to him, the approver is in jail for the last about 32 month and the case is not 'progressing without any fault on the part of the petitioner. He has, therefore, very vehemently contend--ed that, in these circumstances, the Court should not allow him
(1) 1968 P Cr. L J 1361 (the petitioner) to suffer. He has also contended that the case, as observed by the learned Magistrate in Annex. `G', should be treated as having been "equalised to the ending to trial", so far as that Court is concerned. On this basis, it is further contended that there being no trial or possibility of trial, the approver can no more be detained in custody.
4. Mr. Salim Ahmad Malik, the learned counsel appearing for the State, cited Wazir and others v. The State (1) in support of the contention that an approver cannot be released on bail so long as there is the possibility of there being a trial in which he may be needed to give evidence. This authority, no doubt, supportsthe contention of the learned counsel for the State. There is another case Abdul Sattar v. The State (2) decided by a learned Single Judge of this Court which also supports the view that an approver cannot be released on bail, because e there is a clear bar to that effect in subsection (3) of section 337, Cr. P. C.
5. As there was a conflict of authority on the question involv--ed, therefore, when it arose in another case before another learned Single Judge of this Court and the two conflictingSingle Bench decisions, namely, Abdul Sattar v. The State and the unreported decision in Abdul Sattar v. The State were cited before him, he requested the learned Chief Justice for constituting larger Bench for an authoritative decision. Consequently, the case came up before a Division Bench of this Court and is reported as Rehmat Masih v. The State (3). Both the above-mentioned decisions by the learned Single Judges of 'this Court and some other decisions were considered by the Division Bench. The provisions of sections 337, 496, 498 and 561-A, Cr. P. C. Were analysed and examined in some detail. Their Lordships came to the conclusion that sub--section (3) of section 337, Cr. P. C.
Was a complete bar to the grant of bail to an approver "so long as he continues as an approver".
The pronouncement is by a Division Bench of this Court and I follow the same. The result, therefore, is that there is no provision for, and no power in, the High Court for grant of bail to the petitioner in this case. The petition, therefore, merits to be dismissed.
6. The contention of the learned counsel, and the obser--vation of the learned Magistrate, to the effect that the trial should be treated as having terminated simply because the accused had absconded, has not impressed me. Unless the enquiry ends by an order of discharge, or in case of commitment the proceedings conclude in one of the modes provided in the Criminal Procedure Code, the trial cannot be said to have terminated in terms of section 337 (3), Cr. P. C. Two possible exceptions to the normal termination of trial may be when the accused dies, or when the case ii withdrawn by a competent authority. None of the above eventualities has taken place. Therefore, in law, the case will be
(1) PLD 1960 Kar. 674 (2) PLD 1966 Lah. 549
(3) PLD 1968 Lah. 1030 presumed to be pending before the learned Magistrate and the proceedings in respect of the absconder will have to be conti--nued. With these observations, I find no merit in this petition which is dismissed.