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Criminal Miscellaneous No. 1873 of 1967, decided on 23rd June 1967.
S. 220 read with Ss. 497 & 498‑Words "regarding the taking of bail" in S. 220 qualify the word "provisions" and refer to Ss. 497 & 498‑Plea that words refer only to cases of those accused who were not already on bail repelled.
Ss. 220, 497(1), (S) & 498‑Words "provisions . . . regarding the taking of bail" refer to Ss. 497 & 498‑Cancellation of ball under S. 497(5) by committing Magistrate can be ordered only if bail was taken by himself (Shabzada Nur Muhammad v. The State P L D 1964 Lah. 464 rel.).
Ss. 220 & 497(5)‑Accused under S. 302, Penal Code (XLV of 1860), admitted to ball by Sessions Judge who directed that committing Magistrate was at "liberty" to cancel bail if prima facie case was made out against accused‑Bail confirmed by High Court Committing Magistrate not bound to cancel bail on committal-- Commitment does not ipso facto warrant cancellation of bail.
An order of enlargement by a superior Court leaving it open to the committing Magistrate to cancel the bail would not on committal automatically stand withdrawn in each and every case irrespective of its circumstances warranting the remand of the accused to custody. If, therefore, the committing Magistrate has declined to exercise the discretion vesting in him, and for good reasons too, it would not be a case of a failure to exercise jurisdiction. It cannot be laid down as an inflexible rule of rigid and universal application that every order of commitment ipso facto warrants cancellation of bail making it obligatory on the committing Magistrate to do so. Although on a proper construction of section 220, Cr. P. C, cancellation of the bail of the accused and his remand to custody ordinarily follow as a necessary consequence of his committal for trial, subject of course to the provisions of sections 497 and 498, Cr. P. C., yet the non‑exercise of discretion to cancel bail, conferred on a committing Magistrate by a superior Court granting bail, would .not be hit by section 220 .of the Code:
Muhammad Ayub v. Muhammad Yaqub P L D 1966 S C 1003 and Abdul Aziz v. Bashir Ahmad P L D 1966 S C 658 rel.
Maqbul Ahmad v. Anwar P L D 1967 Lah. 364 ref.
Shaukat Ali v. State P L D 1967 Kar. 267 distinguished.
S. 497(S) Cancellation of bail‑Application for cancellation rejected by Additional Sessions Judge in murder case‑Second application for cancellation on same grounds‑Cancellation by successor of Judge, held, not justified‑[Abdul Aziz v. Bashir Ahmad P L D 1966 S C 658 and Muhammad Ayub v. Muhammad Yaqub P L D 1966 S C 1003 ref.].
S. 497(1)‑Bail in murder case‑Proceedings in case inevitably delayed‑Cross cases‑Simultaneous proceedings desirable‑Delay good ground for enlargement of accused on bail‑Amount, causes of, and responsibility for delay relevant considerations‑Each case to be dealt with on its own facts‑No infexible rule can be laid down.
Delay would be one of the relevant considerations for allowing bail even in case of murder and in certain circum stances might per se be a good ground for enlargement. No inflexible rule of universal application could be laid down and the amount of delay, its causes, and responsibility would also be very relevant considerations.
Where the two cases were directly inter‑connected arising out of the same transaction or series of transactions, id which conflicting versions were alleged or asserted by the parties, it was only too meet and proper that a possibility of their simultaneous trial as visualised in the circumstances might be fully kept in view to avoid a conflict of decisions. In these circumstances, it would not be proper to say that the entire responsibility for the so‑called delay was that of the petitioners. On the contrary, the respondent and his co‑accused could not likewise in fairness escape his share of the same. Thus in the nature of things, the delay being inevitable, this would also be a good ground for enlargement of the petitioners on bail.
Rana Bashir Ahmad v. State P L D 1966 Lah. 144 ref.
S. 498 read with S. 497 (1)‑Restricted scope of S. 498‑Section 497 to be kept in view while acting under S. 498‑Accused in murder case found to be innocent by police‑Accused prosecuted by private person on complaint‑Accused remaining on bail for two years after which bail was cancelled by Additional Sessions Judge‑‑Order of cancellation set aside by High Court in circumstances of case [Muhammad Ayub v. Muhammad Yaqub P L D 1966 S C 1003 ref. and Abdul Rehman v. Fazal Karim P L D 1967 S C 293 distinguished].
Ss. 210 & 220 read with S. 497 (I)‑Bail in murder case‑Existence of sufficient ground for commitment or establishment of prima facie case can not be equated with appearance of reasonable grounds for believing that accused are "guilty of offence punishable with death or transportation for life"‑Magistrate not bound to commit accused to custody.
Ss. 497(5) d 498y Bail in murder case‑Bail cancelled by Additional Sessions Judge‑Order of cancellation set aside by High Court‑Previous order of enlargement stands restored and no fresh ball bonds need be filed.
M. Anwar for Petitioners.
Major Nazar Muhammad Mufti Advocate‑General for the State.
Ch. Riasat Ali Khan for Respondent 2.
Date of hearing : 8th June 1967.
This application under section 498/439 of the Criminal Procedure Code is just a ramification of a multiplex of litigation between the two parties, having a factional background of blood feuds, which need not be traced in detail. Two persons, namely, Anwar and Mushtaq, the former belonging to the petitioners' party, while the latter to that of Nazir Ahmad, respondent No. 2, were murdered on 23rd July 1964, in village Natha, Police Station Mangtanwala, District Sheikhupura, in the same transaction or series of transactions.
A case under sections 302/149 and 148, P. P. C. was registered against seven petitioners, at Police Station Mangtaowala, vide First Information Report No. 75 dated the 23rd July 1964, lodged by Nazir Ahmad respondent No. 2, on the allegation of the murder of Mushtaq. Having investigated the case the police did not think it to challan the petitioners holding theta innocent. However; subsequently, on a private complaint lodged by Nazir Ahmad, respondent No, 2 proceedings were initiated against them on the same charges. A few days later i.e. on 3rd August 1964, a cross‑case under section 302/149/120‑B, P. P. C. was registered against Nazir Ahmad, his brother Ch. Nur Ahmad Advocate, and three others at the same police station vide First Information Report. No. 80, lodged by one Waryam for the murder of his nephew, Anwar, and the accused were challaned by the police. This case is pending inquiry with the Sub -Divisional Magistrate, Nankana, who has been restrained from passing any final order by their Lordships of the Supreme Court in P. S. L. A. No. 96 of 1966, by which Special Leave to Appeal was granted to Waryam and others against the order of the High Court in Wilt Petition. No. 132 of 1965, quashing the order of reference under section 3 of the West Pakistan Criminal Laws (Amendment) Act, 1963, of the case against Nazir Ahmad and others. The present petitioners were committed by the Inquiry Magistrate to stand their trial vide his order dated 9th June 1966.
2. Since, the two cross‑oases arising out of the same transaction were inter‑connected in view off' the stay order issued by the Supreme Court in the caw against Nazir Ahmad respondent and others and also because of the concession made by Nazir Abroad and others before, me, I stayed the trial in the case against the petitioners rile my order dated 7th November 1966, passed in Crl. Miscellaneous No. 1941 of 1966. The case against Nur Ahmad, Advocate, under section 120‑B, P. P. C. was separated by the Commissioner and having been allowed to proceed by me, has since concluded ending in his acquittal.
3. On the commencement of criminal proceedings against the petitioners on the private complaint of Nazir Ahmad, respondent, the learned Committing Magistrate issued non bailable warrants for their arrest in April 1965. 7 hey were, however, admitted to bail by the Sessions Judge on 10th May 1965, and continued to remain on bail during and after the commitment proceedings till recently when the Additional Sessions Judge cancelled their bail vide the impugned order dated the 11th May 1967. They have now filed the present petition under section 498/439, Cr. P. C. for the grant of bail.
4. Mr. M. Anwar, learned counsel for the petitioners has raised the following contentions before me:
(1) That the learned Additional Sessions Judge had mis understood and misconstrued the provisions of section 220 of the Code of Criminal Procedure, having taken the view that once an accused person is committed for trial in a case of murder he must inevitably be committed to custody simultaneously;
(2) that on two previous occasions, respondent No. 2 had made unsuccessful attempts to have the bail of the petitioners cancelled, and the third application which was based on no fresh grounds, but was merely a mechanical reproduction of the grounds taken earlier, was incompetent and amounted to an abuse of the process of law;
(3) that although the allegations relating to the abuse of their liberty by the P. Ws. were also repeated in the third application, by which the bail was cancelled, the impugned order made no reference to such an allegation 'which may be deemed either to have been abandoned or overruled;
(4) that in view of the stay of trial ordered by this Court till the disposal of P. S. L. A. No. 96 of 1966 by the Supreme Court, the trial is bound to be delayed for a considerable time;
(5) that the significant fact that the petitioners were held to be innocent by the police after a thorough investigation and were only sent up on the basis of evidence of a partisan nature, adduced in support of a private complaint, having all along remained on bail, did not justify the cancellation of bail;
(6) that in an earlier petition for cancellation of bail the respondent had himself stated that he did not press for cancellation of bail; and
(7) Lastly, it was specifically urged about Zahur Ahmad, petitioner, that he being a student had to take his B. A. examination as commencing on the 23rd May 1967.
5. On the other hand, Ch. Riasat Ali Khan, learned counsel for respondent No. 2 argued on the following lines:
(1) That the provisions contained in section 220, Cr. P. C. was mandatory in nature, and as such once a prima facie case was made out against the petitioners, the 'committing Magistrate should have straightway proceeded to remand them to custody, being under an obligation to do so;
(2) that the impugned order being perfectly sound in law was unexceptionable. Reliance was placed in this regard on P L D 1964 Lah. 464 and P L D 1967 Kar. 267;
(3) that the mere existence of a cross‑case did not necessarily warrant the enlargement of the petitioners;
(4) that even if delay per se may be deemed to be a good ground for enlargement, it were the petitioners who were responsible for this, and should not be allowed to take advantage of the same. Reliance was placed in this regard on P L D 1965 Pesh. 23, P L D 1966 Lah. 86 and P L D 1966 Lah. 144; and
(5) lastly, in defence of the impugned order, the learned counsel also referred to P L D 1966 S C 658, P L D 1966 S C 1003 and P L D 1967 S C 293.
6. Before proceeding to discuss the contentions raised by the learned counsel on both sides, it is necessary to refer in detail to the order of the petitioners' enlargement passed in the first instance by the District and Sessions Judge, Lahore, and upheld by the High Court. Since the Investigating Agency held the petitioners innocent, they entertained no apprehensions of arrest till they were summoned by the Magistrate on the basis of the private complaint filed by Nazir Ahmad respondent No. 2. It war on 30th April 1965, that for the first time they applied to the Sessions Judge, Lahore for anticipatory bail when interim bail was allowed and notice was issued to the State as well as to Nazir Ahmad respondent No. 2. On 10th May 1965, the interim bail was confirmed by the learned Sessions Judge with the following observation:
"If after recording the entire prosecution evidence the inquiry Magistrate is of the view that prima facie a case is made out against the petitioner, he will be at liberty to cancel their bail."
Subsequently; Nur Ahmad, petitioner No. 7, was also allowed bail by the same Sessions Judge on 22nd July 1965 in view of the earlier order of enlargement made by him. Feeling aggrieved, Nazir Ahmad, respondent No. 2, filed a petition in the High Court under section 497(5) read with sections 439 and 561‑A, Cr. P. C. for setting aside the order of enlargement and cancellation of the petitioner's bail. This was dismissed by my learned brother Mushtaq Hussain, J. on 2nd November 1965, with the observation: "there are no cogent grounds for interfering with the order of the learned Sessions Judge. While committing the petitioners for trial on the finding of a prima facie case against them, vide his order dated 9th June 1966, the learned Inquiry Magistrate did not deem it necessary 'to invoke his discretion which according to the learned counsel for respondent No. 2 vested in him under section 220, Cr. P. C., which even otherwise was specifically conferred on him in the order of enlargement passed by the learned Sessions Judge. It appears from a perusal of para graph (4) (c) of the petition that the respondents had earlier approached the Sessions Judge twice for the cancellation of the petitioners' bail, but their applications were dismissed. However, only one of these orders of dismissal by Mr. Muhammad Daud, Additional Sessions Judge, Lahore, dated 19th November 1966, has been placed on the record which it could be advantageous to reproduce.
"Both the cross‑cases have been stayed by the High Court and Supreme Court. As there is no end in view nor can one say when the two cases will be put to trial, both the parries do not press for cancellation for bail. Bail cancellation application is, therefore, rejected when State does not press for the same."
Finally it was on 11th May 1967, that the impugned order giving rise to the present petition was passed by Mr. Ihsanul Haq, Additional Sessions Judge. In this regard the following observation of the Additional Sessions Judge may be reproduced for proper appreciation of the view taken by him.
"Two points have been urged firstly, that when the Committing Magistrate committed the respondents, then on bail (sic) he was bound to commit them to custody. This contention carries force in view of the provisions of section 220 of the Code of Criminal Procedure."
The argument raised on behalf of the petitioners before him that a previous application for cancellation of their bail bad been rejected by his predecessor‑in‑office was repelled by the Additional Sessions Judge on the ground that at that time, the High Court and the Supreme Court had stayed the proceedings and the parties did not press the cancellation of the bail. Although there is no specific reference in the order to an actual or anticipated change in this position, yet an inference could be raised by implication that the position had undergone a change and as such according to the learned Additional Sessions Judge there was no bar to the consideration of the question afresh in the context of the altered situation obtaining at the time.
7. Having traced the background, I now proceed to discuss the contentions raised by the learned counsel on both sides. The impugned order is obviously based on the assumption that section 220 of the Criminal Procedure Code left the committing Magistrate with no option, but to cancel the petitioners' bail once he had decided to commit them for trial. While the learned counsel for the respondent vehemently upheld this view of the learned Additional Sessions Judge, the learned counsel for the petitioners seriously challenged the correctness of this approach. In support of his contention, the petitioners' learned counsel based his attack on a two‑fold argument. Firstly, that the provision contained in section 220. Cr. P. C. Was subject to the provision contained in sections 497 and 498, Cr. P. C. and as such was controlled by them, and therefore, a bail allowed by the Sessions Judge and upheld by the High Court could not be cancelled by the Committing Magistrate. Secondly, that the expression used in section 220, Cr. P. C., namely, "regarding the taking of bail" referred only to the casts of those accused who were not already on bail. The second argument is patents devoid of force and may be straightway dismissed on the short ground that the expression "regarding the taking of bail" qualified the word "provisions" and as such obviously refers to sections 497 and 498, which deal with the "taking of bail". There could have been some possible confusion if a 'comma' had occurred after the word "Code", though even so it would not have been made a proper idiomatic construction. However, in that event the expression "regarding the taking of bail" could possibly mean "in the matter of taking bail" signifying the subject of bail. That being not so, the argument is completely devoid of force. It would .be interesting to observe that both the learned counsel relied on Muhammad Ayub v. Muhammad Yayub (P L D 1966 S C 1003) in support of their respective contentions. Chaudhury Riasat Ali Khan, the learned counsel for the respondent also sought support from Shahzada Noor Muhammad v. The State (P L D 1964 Lah. 464), Shaukat Ali v. State (P L D 1967 Kar. 267) and Abdul Rahman v. Fazal Qadim Khan (P L D 1967 S C 293). Section 220, Cr. P. C. which is the last section in Chapter XVIII, relating to Inquiry into cases triable by the Court of Session or the High Court com mencing with section 206, Cr. P. C. reads thus:
Until and during the trial, the Magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant, to custody."
Earlier, section 210 empowers the Committing Magistrate to frame charge against the accused for committing him for trial provided he is satisfied that there are sufficient grounds for doing so. Section 211 requires the accused to give a list of defence witnesses. Section 212 empowers the Magistrate to summon and examine in his discretion any witness named in the list if submitted under section 211 and section 213 enables him to make an order of commitment for trial for reasons to be briefly recorded or in the alternative to discharge the accused, if he is satisfied after examining the witness or witnesses for defence that sufficient grounds for committing the accused were not available. It will thus he seen‑that section 220 marks the culmination of the procedure of Inquiry laid down in chapter XVIII being the last provision in the series. There could be no manner of doubt that this provision relating to the custody of the accused though mandatory in nature has been expressly made subject to the provisions of the Code regarding the taking of bail. The relevant provisions regarding the taking of bail are given in sections 497 and 498, Cr. P. C. and. obviously override the' provisions contained in section. 220. Under section 497 (1) in the case of a non‑bailable offence, an accused is not to be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life." An exception is, however, created in the case of females, sick or infirm persons or youngsters below sixteen years of age, who may be released on bail, notwithstanding the serious nature of the offence. Subsection (5) of section 497 deals with the cancellation of bas and restricts the powers of the Committing Magistrate to cancel bail of an accused person only if he was allowed bail by him. Obviously, the provision contained in section 220, Cr. P. C. has to be read subject to the provision contained section 497 (5), Cr. P. C. This question was examined in a similar case Shahzada Nur Muhammad v. The State (P L D 1964 Lah. 464) by a Full Bench of this Court and in the conflict of views existing between the Allahabad High Court in Saoti and others v. Rex (A I R 1948 All. 366) and the Patna High Court in Sheobashan v. State their Lordships, agreed with the former. It was observed by Ortcheson, J, who delivered the judgment:
"I, therefore, respectfully agree with the view of the learned Judge of the Allahabad High Court that the words 'the provision of this Code regarding the taking of bail, occurring in section 220 of the Code as refer to section 497 taken as a whole and not subsection (1) of that section in isolation. It is also clear that on the above view, subsection (5) of section 497 of the Code bars a committing Magistrate from cancelling the bail granted to an accused by any other Court, the only Courts empowered by the subsection to arrest a person not released by themselves being the High Court and the Court of Session. In my opinion, therefore, the answer to the question formulated by the learned Single Judge is in the negative."
Since, in the instant case, bail was allowed to the petitioners by the learned Sessions Judge, end was upheld by the High Court the Committing Magistrate was, therefore, not competent to remand them to custody. The petition, however, is slightly different in the instant case, inasmuch as the order of enlargement passed by the learned Sessions Judge also made it competent for the committing Magistrate to cancel the same if in his view a prima facie case was made out against the petitioners. It was observed that in such an event he would be at liberty to cancel the bail Obviously having come to the conclusion that a prima facie case was made out against the petitioners, the learned committing Magistrate nonetheless declined to exercise his discretion or the so‑called "liberty'" given to him. In all probability, the learned Committing Magistrate could have had no‑ misgiving regarding the express conferment of discretion on him to commit the petitioners to custody, coupled with the power vesting in him under section 220, Cr. P. C. It was this qualified order of the learned Sessions Judge which was upheld by the High Court. In the circumstances, it would be difficult to infer that the committing Magistrate had been influenced by the order of the High Court or that he was under some misapprehension regarding the correct legal position My inference in the circumstances therefore, is that the committing Magistrate had deliberately chosen not to exercise the "liberty" so granted to him, notwithstanding the order of commitment passed by himself based on the establishment of a prima facie case against the petitioners.
8. The scope and implications inter se of sections 220 and 497, Cr. P. C. were examined by my learned brother Ilahi Bakhsh Khamisani, J. in a somewhat one similar case Shaukat Ali v. State relied upon by the learned counsel for the respondent. While adopting the view expressed by the Full Bench in Nur Muhammad v. State it was held by his Lordship that the bail granted to an accused by a superior Court in a non‑bailable offence before his commitment could not be cancelled by the committing Court owing to the bar created by section 497(5) and as such the accused could not be directed to be taken into custody under section 220 of the Code. A distinction was, however, sought to be drawn by his Lordship on the basis of the Allahabad authority adopted by the Full Bench in Nur Muhammad v. State, in a case where the original bail order was only provisionally granted, leaving it open to the committing Magistrate to cancel the same on the establishment of a prima facie case. According to his Lordship, in such an event, the power to remand the accused to custody would be deemed to have vested in the committing Court under section 220 of the Code, and the provisional order of enlargement would ipso facto stand withdrawn in consequence of the order of commitment. The correctness of the view expressed by his Lordship cannot be disputed in the particular circumstances of that case. But the position in the case before me is quite distinguishable inasmuch as unlike the precedent case, the committing Magistrate did not exercise the discretion vesting in him by virtue of the order of the Sessions Judge allowing him to cancel the bail. On the contrary, the bail was cancelled by the Additional Sessions Judge after his predecessor‑in‑office had already dismissed one or two applications on the same grounds. This non‑exercise of discretion on the part of the committing Magistrate was in all probability not due to any misgivings on Iris part regarding the correct legal position, but appears to be deliberate, making out a clear distinction between the two positions. Cases are not inconceivable where in spite of an order of committal by himself the committing Magistrate nay not yet like to remand the accused to custody and for good reasons too. For instance in cross‑case under section 307 punishable with transportation where the accused having remained on bail are committed for trial along with the cross case under section 302, P. P. C. the committing Magistrate may not like to cancel their bail. Or take for instance, the case where one of the accused persons in a case of murder only raised a lalkara with no allegations of conspiracy. Similarly, the case before me would also fall in the same category where the police after investigation, holding the accused innocent did not challan them, and they were committed for trial on the basis of evidence led in support of a private complaint. The question that falls for determination would be whether such a deliberate non‑exercise of discretion on the part of the Committing Magistrate is warranted by law, or on the contrary is hit by the provisions contained in section 220, Cr. P. C.
9. From a reference to Muhammad Ayub v. Muhammad Yaqub in which their Lordships of the Supreme Court had inter alia an occasion to examine the question whether or not section 498, Cr. P. C. was only ancillary or subsidiary to sections 496 and 497 of the Code, it becomes abundantly clear that on the view taken by their Lordships, the existence of a prima facie case against the accused does not necessarily give rise to the existence of reasonable grounds for believing that the accused person was guilty of an offence punishable with death or trans portation for life. S. A. Rahman, J., who delivered the majority judgment made the following observation in this regard:
"Of course, the mere existence of an order of com mitment for trial need not be equated with finding that there appear reasonable grounds for believing that the respondent was guilty of an offence punishable with death or transportation for life. Only a prima facie case may be deemed to exist against them on the basis of the order of commitment."
Relying on the same authority, my learned brother Bashir‑ud‑Din Ahmad, J., in Maqbul Ahmad v. Anwar (P L D 1967 Lah. 364) dismissed an appli cation for cancellation of bail in a case of murder where the Committing Magistrate did not remand the accused to custody who was already on bail in spite of having committed him for trial. The learned Judge having referred to the consistent were taken by this Court earlier that the Inquiry Magistrate is bound to cancel bail on commitment for trial on a charge of non bailable offence, then reproduced the same observation in Muhammad Ayub's case quoted by me earlier. His Lordship then referring to the case of Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658) observed as follows:
"If I have been able to understand correctly the implication in the judgment of the Supreme Court in the case of Abdul Aziz v. Bashir Ahmad and The State, the nature of the accusation has also to be seen in such a case by the Court. In the instant case Muhammad Anwar respondent though alleged to have been armed with a pistol did not fire at the victim of the crime with whom he had direct enmity. Ordinarily, an accused person, if armed with a lethal weapon, would use it against his enemy in such a situation. Looking at the nature of the accusation in this particular case against Muhammad Anwar respondent, I am not inclined to cancel his bail merely because he has been charged of an offence under section 302/34, P. P. C. as the framing. of the charge is not tantamount to a finding that the respondent was guilty of an offence punishable with death or transportation for life. Accordingly, the appli cation is dismissed."
Now I come to the case of Abdul Aziz himself.
In this case, Abdul Aziz one of the accused persons in a case of murder was allowed bail by the Sessions Judge, on the two‑fold grounds of sickness and confinement of allegation against him only to shouting a lalkara. Before the conclusion of the commitment proceedings, the public prosecutor applied for the cancellation of his bail on the ground that be was threatening prosecution witnesses. This application was rejected by the Additional Sessions Judge who discounting the allegations of threat to witnesses re‑affirmed the previous grounds of enlargement. Being approached by the complainant, a learned Single Judge of this Court cancelled the bail allowed to Abdul Aziz on the ground that having been committed to take his trial before the Court of Session, a prima facie case had been found against him. Special Leave for Appeal was granted to Abdul Aziz by their Lordships of the Supreme Court for setting aside the order of the learned Single Judge. The learned Single fudge while cancelling the bail had placed reliance on Nur Muhammad v. State, referred to earlier. The following observation of their Lordships of the Supreme Court may be pertinently and advantageously reproduced in this regard:
"The case of Noor Muhammad cited above, was one where a committing Magistrate had cancelled bail granted to an accused person by a Sessions Court, when he committed the said accused for trial. The present is not a case of that kind. A reference to section 497(5), Cr. P. C. will show that only the High Court and a Sessions Court may cancel bail granted by any other Court."
The subsequent view expressed by their Lordships of the Supreme Court in Muhammad Ayub's case that the mere existence of an order of commitment for trial need not be equated with the existence of reasonable grounds for believing that the accused so committed is guilty of an offence punishable with death or transportation for life, is also in accord with the view taken by their Lordships in the earlier case of Abdul Aziz as can be spelt out from the following observation
"Death had been caused by violence, but Abdul Aziz was charged with only uttering a lalkara. Such allegations are very frequently made and Courts, are found to reject them with almost equal frequency in the absence of anything to indicate an earlier conspiracy. Therefore, when the Additional Sessions Judge emphasised that only a lalkara was attributed to Abdul Aziz, he was in effect saying that the evidence to that effect was not a reasonable ground for holding that Abdul Aziz was guilty of an offence punishable with death or with transportation for life, and there was no other evidence on which such a conclusion could be founded."
From the above authorities, it becomes clear that although the distinction between that "appear to be reasonable grounds for believing that the accused is guilty of as offence punishable with death or transportation for life", as contained in section 497, Cr. P. C. and the existence of a prima facie case against him, satisfying the committing Magistrate that "there are sufficient grounds for committing the accused for trial" as provided in section 210 of the Code, is rather fine and subtle, it has nonetheless been clearly recognized by their Lordships of the Supreme Court in the aforesaid authorities. My inference, therefore, would be that an order of enlargement by a superior Court leaving it open to the committing Magistrate to cancel the bail would not on committal automatically stand withdrawn in each arid every case irrespective of its circumstance warranting the remand of tire accused to custody. If, therefore, the committing Magistrate has declined to exercise the discretion vesting in him, and for good reasons too, it would not be a case of a failure to exercise jurisdiction. In my view, it cannot be laid down as an inflexible rule of rigid and universal application that every order of commitment ipse facto warrants cancellation of bail making it obligatory on the committing Magistrate to do so. Although on a proper construction of t section 220, Cr. P. C., cancellation of the bail of the accused and his re and to custody ordinarily follow as necessary consequence his committal for trial, subject of course to the provisions of sections 497 and 498, Cr. P. C., yet the non‑exercise of discretion to cancel bail, conferred on a committing Magistrate by a superior Court granting bail, would not be hit by section 220 of the Code. It may be observed once again at the risk of repetition that in the instant case, the petitioners had been found innocent by the police after investigation and bad all along remained on bail for about two years in a case with no immediate prospects of trial.
10. The next question that falls for determination is whether in the circumstances of the present case, where the committing Magistrate had presumably deliberately declined to exercise the discretion with which he was specifically invested by the Sessions Judge, the Additional Sessions Judge was competent to pass the impugned order of cancellation of bail. As stated earlier, at least one previous application for cancellation of bail, if not two, as asserted by the petitioners had been previously dismissed by Captain Muhammad Daud Khan, Additional Sessions Judge, the predecessor‑in-office of Mr. Ihsanul Haq. Having gone through the grounds taken by the respondent (Nazir Ahmad), in both the applications, I have inn hesitation in agreeing with the learned counsel for the petitioners that the grounds taken subsequently before Mr. Ihsanul Haq were more or less a reproduction of the earlier grounds taken before Captain Muhammad Daud Khan. They particularly contained, allegations of the abuse of their liberty by the petitioners and of their effort to suborn the witnesses. These allegations were not referred to by the learned Additional Sessions Judge in the impugned order even in passing. The presumption would therefore, be that they were either not pressed at all before him or were overruled. The former eventuality seems to be more probable, as would be clear from a perusal of paragraph 4 of the impugned order which refers to only two contentions urged before him, one by each party, as detailed earlier. In the circumstances, therefore, when no fresh ground was taken before the learned Additional Sessions Judge, it was not proper for him to entertain a second application on the same grounds which would amount to review of a previous order passed by an officer of concurrent jurisdiction. It would of course, be competent for a petitioner to move an application for bail or for cancellation of bail on a fresh ground, bat there appears to be no warrant for the entertainment of a subsequent application on the came grounds. In Mian Mahmud Ali Qasuri and others v. State (P L D 1963 S C 478) a similar argument was raised by the learned Advocate‑General by their Lordships of the Supreme Court attacking the maintain ability of a second petition before the High Court. Although the contention was overruled, nonetheless, reliance could be placed on the following observations of their Lordships:
"In bar of the second petition before the High Court it was urged by the learned Additional Advocate‑General that what the appellants sought would amount to a review of the previous order passed in a criminal matter and this was not permissible under the law. The point was however overruled on the ground that the second petition could be treated as a fresh application for bail and if it was found that the condition subject to which the bail was granted was not warranted by law, a fresh bail order omitting the condition could be passed."
I am inclined to think that the above reference lends considerable support to the view that no second petition on identical grounds was competent before the Additional Sessions Judge on the dismissal of the former without any fresh development giving rise to a fresh cause of action. On a parity of reasoning reliance could also be placed to this regard on the following observation of S. A. Rahman, J. who delivered the majority judgment in Muhammad Ayub's case contained in the penultimate paragraph:
"Coming now to the facts of the instant case it seems to me that the bail granted by the learned Single Judge to the respondent on submission of grounds almost identical to those which were mentioned in his previous application and which was rejected by another single Judge was not justified."
On this score also the impugned order cannot be sustained, more so for the reason that the previous application for cancellation of bail was not pressed before Mr. Muhammad Daud Additional Sessions Judge, as would be clear from his order reproduced in paragraph 6 of this Judgment.
11. I, would now come to the question of delay. As stated earlier, the present litigation between the parties originating from a double murder incident led to a multiplicity of miscellaneous applications besides a Writ Petition. Criminal Miscellaneous Nos. 3145 and 3146 of 1965, and Criminal Miscellaneous Nos. 1941 and 1942 of 1966, two of which were filed by the present petitioners sought stay of proceedings. All these were disposed of by me; the former two on 29th November 1965, while the latter on 7th November 1966. On the contrary, respondent No. 2, also filed Writ Petition No. 132 of 1965, which was accepted by a Division Bench of this Court on 15th April 1966, to which I was also a party. In this the Commissioner's order referring the case against respondent No. 2 and others to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, as also the revisional order of the Home Secretary upholding the order of reference were on challenge by respondent No. 2 quashed by the D. B. In Rana Bashir Ahmad v. State (P L D 1966 Lah, 144) a Division Bench judgment delivered by me the view taken was that delay would be one of the relevant considerations for allowing bail even in a case of murder and in certain circumstances might per se be a good ground for enlargement. It was further observed that no inflexible rule of universal application could be laid down and that the amount of delay, its causes, and responsibility would also be very relevant considerations. Although it appears ex facie that the present petitioners had sought stay of proceedings both before me as also before their Lordships of the Supreme Court, it may be observed that the petitioners' stay Application No. 1941 of 1966 (Crl. Misc.) allowed by me in the first instance was not opposed by respondent No. 2, as would be clear from the following observation made by me in paragraph 7 of my order dated 7th November 1966:
"As stated in my interim order dated the 24th of October 1966, in Criminal Miscellaneous No. 1941 of 1966, Nazir Ahmad respondent has no objection to the stay of the trial of the case Nazir Ahmad v. Muhammad Aslam etc. till the disposal of the appeal pending in the Supreme Court."
Again, in the Writ Petition No. 132 of 1965, filed by Nazir Ahmad, respondent, he had himself sought the stay of proceedings before the Tribunal to which the case against him and his other co‑accused had been referred. This prayer was allowed by a Division Bench of this Court dated the 16th February 1965. Since, however, the two cases are directly inter‑connected arising out of the same transaction or series of transactions, in which conflicting versions are alleged or asserted by the parties, it was only too meet and proper that a possibility of their simultaneous trial as visulised in the circum stances may be fully kept in view to avoid a conflict of decisions. In these circumstances, it would not be proper to say that the P entire responsibility for the so‑called delay is that of the petitioners. On the contrary, the respondent and his co‑accused cannot likewise in fairness escape his share of the same. Thus in the nature of things, the delay being inevitable, this in my view, would also be a good ground for enlargement of the petitioners.
12. Coming now to the last question as to the nature and scope of powers of this Court under section 498, Cr. P. C., the position appears to have been finally settled by the dictum of their Lordships of the Supreme Court in Muhammad Ayub's case. The majority view concurred by Cornelius, C. J. and Fazle. Akbar, J., was expressed by S. A. Rahman, J. in the following terms
"The better view seems to be, that the policy of the law, in respect of bail to persons, accused of non‑bailable offences, is laid down in section 497 and the same policy should be kept in view, while considering the question of bail under section 498, Criminal Procedure Code. After all, judicial discretion has to be exercised, while granting bail and the power conferred by section 498 of the Code cannot be construed to be purely arbitrary. In this respect, therefore, section 498 of the Code seems to me to be ancillary or subsidiary' to "sections 456 and 497 of the Code."
Although in view of the earlier discussion in the judgment, it is not necessary for me to examine the present petition from this point of view; nonetheless, however, I would like to' observe in passing that notwithstanding the restricted scope of section 498, Cr. P. Code, as enunciated by their Lordships of the Supreme Court, the significant fact that the petitioners were found to be innocent by the police after investigation could be properly taken note of and pressed into service in allowing bail to the petitioners which was cancelled after two years only on a legs pretext. Learned counsel for respondent No. 2 who was full supported in his submissions by the learned counsel appearing on behalf of the State also placed reliance on a recent judgment of the Supreme Court in Abdul Rehman v. Fazal Karim (PLD 1967 SC 293). In this case, their Lordships dismissed the petition for Special Leave to Appeal against an order of the High Court confirming the petitioner's bail before arrest in a case of murder. Reliance was particularly placed on the following observation of the learned Chief Justice:
"Mr. Q. M. Salim urged that the result of the High Court order may be that they will remain on bail throughout the commitment proceedings and the trial as well, if they are committed for trial. That apprehension is unfounded. The law is clear that a Court cannot allow any person of whose case it is seized to remain an bail if there be reasonable grounds for thinking that he has been guilty of an offence punishable with death or transportation for life, except on grounds of sickness or infirmity, or of age, i.e. extreme, youth or extreme old age, or of sex. The committing Magistrate and if a trial follows, the Sessions Court, will in due course be in a position to determine the question of bail on this basic and the High Court order, directing bail before arrest, will then not stand in the way."
I have already discussed this aspect of the matter and relying on Supreme Court authority have hold that existence of sufficient ground for commitment or the establishment of a prima facie case for trial cannot be equated with the appearance of reasonable grounds for believing that a person is guilty of an offence punishable with death or transportation 'for life. In the ease cited by the learned counsel for the respondent, the learned Chief Justice has significantly enough not referred to the existence of a prima facie case, but has clearly though not in terms reproduced the relevant expression contained in section 497 of the Code regarding the appearance of "reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life." The authority, is therefore, distinguishable and not helpful to the respondent.
13. The upshot of the discussion, therefore, is that the impugned order being unsustainable, is set aside with the result that the petitioners' previous order of enlargement stands restored, and as such they need not furnish fresh bail bonds, pending decision of the case. The application is accordingly allowed.
Application allowed.
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