Find a Lawyer

Criminal Appeal No. K‑22 of 1969, decided on 22nd May 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated the 26th August 1968, in Criminal Bail Application No. 274 of 1968).

S. 497‑Discretion to grant or refuse bail under section 497‑Must be exercised on judicial principles‑‑Mere fact of accused appearing guilty of offence under S. 161, P. P. C. read with S. 5 (2) of Act II of 1947‑Not by itself sufficient ground for refusal of bail where offence neither punishable with death nor with transportation for life‑Fact that accused eras a Basic Democrat‑Cannot be reason for condemning him‑Order refusing bail on such ground, held, ex facie arbitrary and based upon irrelevant consideration.

H. T. Raymond, Senior Advocate Supreme Court (M. Zaheeruddin Khan, Advocate Supreme Court with him) instructed by Ameer Ahmad, Attorney fear Appellant.

S. M. Nurul Hassan, Advocate Supreme Court instructed by Ijaz Ali Sheikh, Attorney for the State.

Date of hearing : 22nd May 1969.

---This appeal by special leave arises out of an order of a learned Single Judge of the High Court of West Pakistan, Karachi, dismissing an application for bail. The appellant who is a Basic Democrat of Union Committee No. 1411) and Unit No. 138(1 of Karachi, was charged with having illegally accepted a bribe of Rs. 200 from one Abdur Rashid, for assisting him in getting back his wife, Mst. Shaheen who had allegedly disappeared from home on the 4th June 1968. On this charge he was arrested can the, 27^th July 1968, by the Special Judge Anti‑Corruption. He applied for bail on the 31^st July 1958, before the learned Sessions Judge of Karachi as the Special Judge Anti‑Corruption Provincial was absent on that date. This application was rejected. Hence a bail application was moved on the 1st August 1968 before the high Court, Karachi Bench. This too was rejected on the 3^rd August 1968.

Subsequently, a challan was put in by the police and then a bail application was again moved before the learned Session Judge, Karachi, but that too was rejected on the ground that the applicant was arrested rod‑handed in a trap in presence of a Magistrate.

Frown this order the appellant again went up to the High Court of West Pakistan, Karachi Bench but the High Court on the 26th August 1968, refused to enlarge the appellant on bail on the ground that since he was a Basic Democracy Member, his enlargement on hail would not be proper in a case in which the tainted money has been recovered by the Magistrate supervising the trap. The learned judge was also of the view that "the fact of the petitioner being a Basic Democrat is liable

to lie construed against him",

Leave was granted to the petitioner to consider as to whether the ground given by the High Court for refusing bail was justified under section 497 of the Criminal Procedure Code.

The offence with which the appellant was charged was under section 161 of the Pakistan Penal Code read with section 5 (2) of Act 11 of 1947. Neither of these offences is punishable with death or transportation for life. There was no bar, therefore, to tire grant of bail. The cruse of the appellant fell within the first part of section 497, Cr. P. C. This section gives a discretion to the Court in the matter of granting bail, but this discretion, like all other judicial discretions has to be exercised on sound judicial principles.

The question that arises for consideration in this case is, whether the discretion has been so exercised by the High Court in refusing bail to the appellant. The only reason that the High Court has given is that tainted money was recovered from the possession of the appellant by the Magistrate supervising the raid. But this by itself, is not sufficient to establish the offence. Indeed the mere fact that a person appeared to be guilty of having committed the offence charged with is not itself a ground for refusing bail in a case which is not punishable with death or transportation for life. There must be some other consideration which could influence the Court in refusing bail in such cases. The only other consideration referred to in the order of the High Court is that the appellant is a Basic Democrat, but this, as rightly pointed out by the learned counsel appearing in support of this appeal, is not by itself, a crime, nor a ground for condemning a person. There may be good s Basic Democrats as well as bad Basic Democrats but the question as to whether a person charged of an offence is a Basic Democrat or not cannot be a reason for condemning him even before he is found to have committed the offence. In the circumstances we are of the view that upon the grounds mentioned in the order of the High Court it cannot be said that the High Court has exercised its discretion under section 497, Cr. P. C. upon sound judicial principles. The order is ex facie arbitrary and based upon irrelevant considerations.

This appeal must, accordingly, be allowed and the order of the High Court set aside. The ad interim bail granted to the appellant at the time of granting leave to appeal will now be confirmed. The Court before which the case is pending for trial drill take expeditious steps to dispose it of at an early date.

If evidence has already been led before the trial Court or if there is any other ground which entitles the prosecution to apply for cancellation of the bail, they will have the liberty to apply for such cancellation before the trial Court.

This appeal is, accordingly, allowed, the order of the High Court is set aside and the ad interim bail granted to the appellant is hereby confirmed.

Appeal accepted.

Find a Lawyer Near You

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