Find a Lawyer

Bail Application No. 152 of 1966, decided on 20th October 1966.

, S. 498 read with Ss. 496 & 497-Bail-Pox-er of High Court under S. 498-Not unfettered and noon trolled by Ss. 496 & 497-Offence under S. 376, P. P. C. Conditions laid down in S. 497 must to satisfied before bail can be granted to accused.

A I R 1951 Mad. 1042; P L D 1951 Bat. 48; P L D 1956 Kar. 381 and P L D 1963 Kar. 136 cited.

A. R. Mirza for Appellant.

A. A.-G. West Pakistan, Karachi for the State.

Date of hearing; 14th October 1966.

This order will dispose of Criminal Bail Application No. 152/66 filed under sections 497/498, Cr. P. C. on behalf of one Akhtarali son of Dost Ali who was on 30-7-66 granted bail in the sum of Rs. 10,000, with one surety in the like amount by the Sessions Judge, Karachi, which order of bail was, however, on 21-9-66 cancelled by the same Judge on an application under section 497 (5); Cr. P. C. being presented to him on behalf of the State. This application for cancellation of bail included amongst the respondents/accused the name of Aftab Anwar Jaleel but, inasmuch as, an earlier application for cancellation of the bail granted to Aftab Anwar Jaleel had been rejected on 15-8-66 by an Additional Sessions Judge at Karaehi the learned Sessions Judge, Karachi, in his order dated 21-9-66 refrained from, cancelling the bail granted to the said accused Aftab Anwar Jaleel on the short ground that he had no power to do so. He, however, concluded that order by saying-

"So far as accused Aftab is concerned he was granted bail by the Additional Sessions Judge who bad also rejected the application for cancellation of bail. I have, therefore, no power to cancel his bail. The prosecution may move the High Court."

The summary hearing before me of Criminal Bail Application No. 152/66, while admitting it to a regular hearing I also issued notice to the said Aftab Anwar Jaeel to show cause why his bail should not be cancelled. I did so for two reasons: (1) because of the significant remarks of the learned Sessions Judge, Karachi, in the concluding portion of his order of 21-9-66 and (2) because the A. A.-G. who was present in Court at the summary hearing of Criminal Bail Application No. 152/66 orally moved me in Court on behalf of the State to do so. Thus, this order while disposing of Criminal Bail Application No. 152/66 will also dispose of the Show-cause Notice issued by this Court to Aftab Anwar Jaleel.

2. It is, I think, unnecessary for the purposes of this order, to traverse the facts giving rise to the present application or to recite the case as put forward by the prosecution. I observe that the prosecution story has been disclosed at some length in the impugned order of the Sessions Judge, Karachi, of 21-9-66. I am also mindful of the fact that this case has yet to proceed to trial and that up to now the proceedings have not yet commenced and not a single prosecution witness examined. In these circumstances, it behaves me to be reticent as to any opinion that I may have formed in my mind as to the merits or demerits of the prosecution case, particularly, as this being the highest Court of jurisdiction so far as this Province is concerned any expression of opinion as to the merits or demerits of the prosecution case will be bound to prejudice a fair and impartial trial to which the accused are entitled. I will, therefore, content myself by merely stating that the two opponents Akhtarali son of Dost Ali and Aftab Anwar Jaleel have been challaned with sixteen others in the Court of a Magistrate at Karachi for offences under sections 366, 368 and 376 read with section 109, P. P. C. The main allegation so far as these two respondents are concerned is that on 14.3-66 they abducted a girl by the name of Saeeda Karim, the daughter of a Class I Accounts Officer of the Government of Pakistan, as she was on her way to the Karachi College for Women where she was then studying: From that date for mare than two months she was absent from her parental abode to the great sorrow and dismay of her parents and elders. It was only on 23-5-66 that she was recovered from a prostitution den in Nazimabad, North Karachi. During this period the opponent Aftab Anwar Jaleel with others is alleged to have committed rape upon her. Aftab Anwar -Jaleel is also alleged when kidnapping or abducting her on 14-3-66 to have driven her of from a bus stand in a car belonging to his father which he was then driving himself with opponent Akhtarali as a passenger. It may also be mentioned here that the accused in this case are said to be moneyed persons, commanding great influence and hence in a position to lord it over the prosecution witnesses.

3. I have heard at great length Mr. A., R,. Mina on behalf of Akhtarali, Mr. Akhter Mahmood and Mr. M. I. Merchant on behalf of Aftab Anwar Jaleel and the learned A. A.-G. on behalf of the State.

4. Mr. A. R. Mirza has assailed the validity of the order of the Sessions Judge, Karachi, dated 21-9-66 on the ground that he has assigned no reasons whatsoever for cancelling the bail previously granted by him to the applicant Akhtarali. The learned Advocate has referred me to certain reported cases such a3 A I R 1951 Mad. 1042, A I R 1930 Bom. 484 and P L D 1951 Balu. 48 (2) in which the grounds for cancellation of b ail have been set forth and expatiated upon. It did strike m-.as somewhat strange and the same thought was urged before n1j by the, learned A. A.-G.-.in- the form, of an' argument, that this Advocate for applicant Akhtarali while concentrating his attack upon the validity of the impugned order of the learned Sessions Judge, Karachi, dated 21-9-66 hag not come in revision against that order but has presented a fresh bale application under sections 497/498, Cr. P. C. But, however, that may be, the learned advocate is under a duty even in this fresh application for bail to establish some good grounds for the grant of bail and this he has not been able to do. His emphasis upon the previous order. of the learned Sessions Judge of 30-7-66 granting bail to his client loses much of its force when one turns to the language of that order. It is in these words:-

"Heard Advocate and A. P. P. Without' expressing any opinion I grant bail to the accused on furnishing P. R. and' surety each in the sum of Rs. 10,000."

This short and cryptic order can bear no comparison with the detailed order of the same; Judge of 21-9-66, and hence I find no substance in this contention of the learned Advocate appearing on behalf of applicant Akhtarali. The learned Advocate concluded by placing before me two reported decisions of Wahiduddin Ahmed in the matter of the grant of bail reported in P L D 1956 Karachi 381 and P L D 1963 Karachi 136. But, I pointed out to him that the view expressed in these two cases is plainly in conflict with the recent, majority judgment of our own Supreme Court on this very point. No longer can it be said that the power of the High Court under section 498, Cc. P. C. is unfettered and uncontrolled by the two previous sections.

5. With regard to the case of Mr. Aftab Anwar Jaleel, a perusal of the impugned order of the learned Sessions Judge, Karachi, makes it manifest that he has only refrained from cancelling his bail because he had no power to do so. He, therefore, referred his case through the prosecution to this Court. It was urged by Mr. Akhtar Mahmood, the learned Advocate appearing on behalf of this opponent, that he was granted bail before arrest on 14-7-66 by Mr. G. H. Ansari Additional Sessions Judge, Karachi, who a month later on 15-5-66 confirmed his bail rejecting at the same time an application made to him on behalf of the State for cancellation of bail. I have peruses this order of the learned A. S. J. The two grounds discussed in this order namely that nude photographs of the abducted girl are to be recovered from the opponent and that more accused are still to be arrested are in my view, of little consequence when considering the case for the prosecution as it now stands 'against this opponent. This case as disclosed to me in Court by the learned A. A: G. is that the present opponent Aftab Anwar Jaleel did. not only play a prominent parting in kidnapping or abducting the girl in question in his father s ;cars car driving it himself, but that thereafter he raped this girl at the places where she was subsequently detained. It seem to me that the charges as brought -forward by the prosecution in this case are vary serious and require careful scrutiny. At the same time I am cognizant of the legal position that even the High Court whew granting bail does so under section 496 or 497 read with section 498, Cr. P. C. and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier sections. It is, therefore, eminently necessary that the conditioner laid down in section 497, Cr. P. C. must be satisfied before bail can be granted. An offence under section 376, P. P. C. can be punished with transportation for life.

6. In these circumstances, then, while cancelling the bail granted to opponent Aftab Anwar Jaleel, I uphold the impugned order of the learned Sessions Judge, Karachi, cancelling the bail of opponent Akhtar Ali. Of course, it will be open to these two opponents, at a later stage of the case and after evidence of the material witnesses has been recorded, to repeat their applications for bail, should they then feel that it is within their power to make out a case for the grant of bail.

Bail cancelled.

Bail cancelled

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.