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Criminal Miscellaneous No. 3145 of 1962, decided on 17th December 1962.

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-----‑Three criteria for grant or refusal: (1) Every person accused of an offence is to be presumed to be not guilty ; (2) Process of trial should not be allowed to be defeated and (3) Possibility of commission of further offences by accused has to be safeguarded against‑Seriousness of offence and strength of evidence not by them selves but only "indirectly" relevant‑Court's order to set out reasons, with reference to the three criteria, for refusing boil‑Criminal Procedure Code (V of 1898), Ss. 497 & 498.

Khawaja Shaukat Ali for Petitioner.

[The following order admitting the bail petition to a hearing, was made prior to the order published as P L D 1963 Lah. 188, which disposed of the petition and which should be read in conjunction with the order set out below :]

The provisions relating to bail in respect of persons accused of having committed offences are an attempt to strike a balance between three requirements, all of which are essential.

2. A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a person is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and feel they have nothing further to lose by committing more offences should not be allowed to be in a position to do so. This is the third requirement.

3. From the first it follows that an accused person should not be deprived of his liberty during his trial ; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb.

4. When combined, these three requirements emerge in the form of the rule that a person who is accused of an offence but has not yet been found guilty of having committed it, must not be deprived of his liberty so long as it can otherwise be secured that he will face his trial and be available to receive the sentence if convicted except when, and for only so long as, it appears that unless he is deprived of his liberty, he may run away or prevent the discovery of evidence against him or destroy or tamper with that evidence or utilise the interval between the accusation and the finding in respect of that accusation to injure others, in the belief that he is going to be convicted in any case and no greater harm could come to him if he committed more offences during that interval. When the worst that can happen to him is not too severe, or the nature of the offence does not imply desperateness of character, the law presumes conclusively that he will do none of those things and provides that a person accused of such an offence shall not be deprived of his liberty if security for his attendance at the trial is given. These are the offences referred to in the Code of Criminal Procedure as "bailable". When, on the other hand, the worst that can happen to him is the imposition of one of the severest penalties that the law provides‑namely, either death or transportation for life‑the law presumes that he will do one or more of those things unless it can be shown in the circumstances of a given case that it is reasonable to suppose that he will not. The decision of this issue is left to be made only at the most responsible levels of the judicial hierarchy.

5. Between these two limits the law does not make any presumption either way and leaves the rule governing this matter to be applied to the circumstances of each case‑the rule, namely, that the person accused is not to be deprived of his liberty unless the interests of a proper investigation and trial, and those of society, cannot be protected without doing so. The seriousness of the offence and the strength of the evidence are not by them selves relevant for the purpose of deciding whether the liberty of a person, who is presumed to be not guilty, is to be taken away or not. They are relevant only indirectly in so far as they may have a bearing on the strength of his desire to defeat a proper inquiry into his offence, or of his propensity for committing other offences because of a feeling that he will be incuring no additional risk by doing so.

6. When granting or refusing an application for bail during trial, therefore, a Court should never base its decision directly on its estimate of the strength or weakness of the case against the accused. Quite apart from the fact that the strength or weakness of the case is not directly in issue at that stage, an expression of opinion on that point amounts to judging at a premature stage the very matter that is to be decided at the trial after a proper, inquiry. When that opinion is expressed by a higher Court it is sometimes taken by the trial Court to be a pointer in one direction or the other and thus is likely to operate to the prejudice of one; party or the other.

7. In the case before me, the order of the learned Sessions Judge does not show how the case stands with reference to the matters that are relevant for deciding whether it is necessary to deprive the petitioner of his liberty before the issue of his guilt has been determined at a trial. I would, therefore, admit this case to a hearing and direct that a notice be given to the State for a very early date to show for what reasons it is necessary that the petitioner should not be admitted to bail. Since there try be good reasons which the learned Sessions Judge may live considered but may not have put down in the belief that what he has said in his order is enough‑which it is not‑-I refrain from making any interim order pending the hearing of this petition.

8. The case should be fixed for hearing as soon as possible and in any case not later than the first week of January 1963.

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