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Criminal Revision No. 53 and Criminal Miscellaneous No. 243/11 of 1980, decided on 5th February, 1980.

Interpretation to be adopted‑Must be such as advances rather than defeats very purpose of enactment:

Shamsuddin Ahmad v. Registrar, High Court of East Pakistan, Dacca P L D 1967 S C 501 and Province of East Pakistan v. Sharafatullah P L D 1970 S C 514 ref.

---Clause of statute‑To be construed with reference to context and other clauses of Act, so as to make enactment consistent as far as possible.

Midland Bank Ltd. v. .Conway B. C. (1965) 1 W L R 1165; Smith v. Hughes (1960) 1 W L R 830; Heydon's case (1584) 3 Co. Rep. 7a and Kirbi v. Leather (1965) 2 Q B 367 ref.

----S. 497 (1), proviso 2(b)‑Interpretation of statutes‑‑Words "continuous period" occurring in proviso 2(b)‑Interpretation leading to absurdity‑To be discarded‑Words "continuous period" in proviso 2(b)‑To be interpreted liberally, subject to all just exceptions, so as to cover and include case of an undertrial kept in judicial lock‑up for more than two years calculated cumulatively and excluding therefrom period of delay responsibility for which lay on him or some one else on his behalf by a direct or indirect act of commission or omission‑Matter to be decided according to justice, right and equity to be given preference over strict interpretation of law.‑[Words and phrases‑Interpretation of statutes].

Attorney‑General v. Prince Ernest Augustus of Hanover (1957) A C 436 and Pits v. James 121 Hob. 125 ref.

-‑‑S. 497‑Bail‑Bank .guarantee‑Bail order in terms of Bank guarantee‑Held, in excess of jurisdiction.

Abdul Ahad's case 1970 P Cr. L ‑J 1256; Muhammad Riaz's case 1979 P Cr. L J 427 and Lakhi Narayan Kundu's case P L D 1955. Dacca 84 ref.

III. Aftab Iqbal Chaudhary for Petitioners.

Ilahi Bakhsh Vijdani for the Complainant.

Altaf Muhammad Khan for the State.

This order disposes of Cr.R._ No. 53. of 1980 and Cr. M. No. 243/B‑80.

2. The learned Additional Sessions Judge, Gujrat, by his order dated 15‑1‑1980, has allowed bail to Sabir Husain, Sardar Khan and Shaukat Ali subject to Sabir Husain and Shaukat Ali furnishing bail bonds in the amount of Rs. 50,000, with Bank guarantee to that effect and Sardar Khan in the amount of Rs. 1,00,000, with Bank guarantee in the like amount. The accused have come up in revision for the modification of the aforesaid order regarding the furnishing of Bank guarantee, whereas Adalat Khan complainant has come up for ‑the cancellation of the bail of all the three accused (Cr. M. No. 243/B‑80). ‑

3. Bail has been ‑allowed to the accused in view of the recent amendment of section 497, Cr. P. C. and, therefore, nothing is involved qua the merits of the case. The learned counsel for Adalat Khan has contended that Sardar Khan managed a fictitious bail order and on the basis of that order he was released from Jail on 13‑5‑1978 and when this fact was found out he was recommitted to custody on 19‑11-1978, and, therefore, has not been detained for such offence for a continuous period' exceeding two years within the meaning of Proviso 2(b) to section 497(1), Cr. P., C. It has been further argued that the entire family of the accused has, settled abroad and if they are released on bail, they will abscond.

4. An interpretation has to be adopted which must be such as advances rather than defeat the very purpose of the amendment. Ample guidance on the point can be found in Shamsuddin Ahmad v. Registrar, High Court o East Pakistan, Dacca (PLD 1967SC501) and Province of the East Pakistan v. l Sharafatullah (PLD 1970 S C 514).

A clause of a Statute has to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent B enactment of the Statute. Midland Bank Ltd. v. Conway ((1965) 1 W L R 1165), is a case m which the principle that words should be read in their context prevailed over arguments based on the literal wording of the Act and the purpose of the provisions in question and in the well known case of Smith v. Hughes ((1960) 1 W L R 836), it was held:

"that prostitutes who attracted the attention of passers by from balconies or windows were soliciting in a street' within section 1(I) of the Street Offences Act, 1959. For my part', said. Lord Parker, C. J. (at page 832), I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes'. Viewed in that way, the precise place from which a prostitute addressed her solicita tions to some body walking in the street became irrelevant." '

In Heydon's case ((1584) 3 Co. Rep. 7a), it was resolved. by the Barons of the Exchequer (at p: 76) that .for the sure and true interpretation of all statutes in' general (be they penal or beneficial/restrictive or enlarging of. the common law) four things are to be discerned and considered:‑.‑

(i) what was the common law before the making of the Act; .

(ii) what was the mischief and defect for which the common law did not provide;

(iii) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and

(iv) the true reason ‑ of the remedy; and then the Office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

Similarly in Kirbi v. Leather ((1965) 2 Q B 367), when faced with a provision which, with reference to both adults and infants, applied to a person in the custody of a parents Danekwerts, L. J. said . that "we must strain ourselves to give it a sensible meaning". It was, therefore, interpreted as not including a person merely of unsound mind who happened to live with his parents. It was said: the draftsman must have had in mind the case of a harmless imbecile or mongol who could be expected to be actually in the custody of his parents'.

Analysing the argument of the learned counsel for the complainant in the‑ light of the general principles of interpretation. stated above, it would mean that if an accused was released on bail by a Sessions Judge after a detention of a few days short of two years and he was committed to custody on the cancellation of the bail a few days later and thereafter trial did not conclude even a few months or a year later for no fault of the accused, the case of the accused would not be covered by proviso 2(b) to subsection (1) of section 497 Cr. P. C. and, therefore, the bail has to be refused. In my humble view, such a stricto senso restricted interpretation of the words continuous period' would lead to an absurdity and such an interpretation) would have to be rejected 'would the general rule that where the result of ones of the two interpretations would be to lead to an absurdity the interpretation leading to an absurdity has to' be discarded and the leading modern easel on this point is Attorney‑General v. Prince Ernest Augustus of Hanover ((1957) A C 436), and in support of this rule I would also quote from Pits v. James (121 Hob. 125):

"I commend the Judge observed Lord Hobart, that seems fine and ingenious, so it tend to right and equity; . . . . . . . and I condemn them that either out of pleasure to show a subtle wit will destroy, or out of incuriousness or negligence will not labour to support, the act of the party by the art or act of the law."

I would, therefore, interpret the words continuous period' appearing in Proviso 2(b) to subsection (1) of section 497, Cr. P: C. liberally, subject to all just exceptions, so as to cover and include the case of an under‑trial who has been in the judicial lock‑up for more than two years calculated cumula tively and excluding therefrom the period of delay for which he or someone else on his behalf by a direct or indirect act of commission or omission has been responsible. 1 would say that a matter has to be decided according to justice and right and equity has to. be given preference over the strict interpretation of law.

5. The apprehension of the complainant that the accused are likely to abscond can be taken care of by enhancing the amount of surety. As far as the legality of directing a Bank guarantee is concerned, I examined the point in Muhammad Riaz's case (1979 P Cr. L J 427), and with respect followed the view taken in A6dcd Ahad's case (1970 P Cr. L J 1256), and Lakhi Narayan Khundat's case (P L D 1955 Dacca 84), andi held that a bail order in terms of a Bank guarantee is in excess of jurisdiction and that being the view, I consider it expedient to modify the impugned order dated 15‑1‑1980 passed by the learned Additional Sessions Judge, Gujrat, to this extent that each of the three accused will be released on bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000, with two sureties, each in the same amount to the satisfaction of the trial Court. Copy dasti on payment of usual charges.

The result is that Cr. R. No. 53 of 1980, is accepted and Criminal M. No. 243/8 of 1980, is dismissed.

Orders accordingly.

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