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Petitioner: MANZUR AHMAD VS Respondent: MANZUR AHMAD And 8 OTHERS
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: MANZUR AHMAD vs MANZUR AHMAD And 8 OTHERS Case No.: Criminal Miscellaneous Nos. 2118/B and 2420/B of 1971 Date of Judgment:1971-11-10 Reported As: 1972 P Cr. L J 1192 Result: Petition dismissed
JUDGMENT
JUDGMENT These are two petitions under section 497(5), Cr. P. C,, for cancellation of bail granted by me in two murder cases by my order, dated 22-7-1971 (impugned in Criminal Miscellaneous No. 2420/B-71) and order dated 15-10-1970 (impugned in Criminal Miscellaneous No. 2118/B-71). As common questions of law are involved and arguments have been heard together, therefore, both the petitions are being disposed of together. While granting bail in the first mentioned case, I noticed on the statement made by the learned counsel for the State, that three police officers investigated the case including a D. S. P. and had declared the eight respondents as innocent. I also noticed on the statement made by the learned counsel for the accused that they had not been summoned to face commitment proceedings nor a private complaint had been filed against them. On these facts particularly, on the result of the investigation by the police, I held that the case of the eight accused was covered by subsection (2) of section 497, Cr. P. C. and that they were entitled to bail. Ch. Nazir Ahmad Khan, learned counsel for the complainant, in support of the petition for cancellation of bail, has contended that the statements made before me on all the three matters, namely, the opinion of the police, the summoning of the accused to face inquiry and the filing of the complaint, were incorrect; therefore, the bail should be cancelled and, in any case, this Court was not bound by the opinion of the police and this being a case in which the complainant party (eye-witnesses) continued to accuse the respondents of direct participation in the occurrence, they are not entitled to remain on bail. On the basis of some affidavits and reports made to the police, he has also urged that the respondents have misused the concession of bail and the same should be cancelled.
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Mr. M. Anwar, learned counsel for the respondents, has in reply contended that on the questions of the opinion of the police and the summoning of the accused, the statements made were not wrong and on the question of filing of the complaint, his colleague (Mr. Aftab Furrukh, Advocate) had informed this Court by a subsequent statement and written application that after the announcement of the order by me on 22-7-1971, thp accused had heard that Manzoor Ahmed, the first informant in the case, had lodged a complaint before a Magistrate. On the question of law, he has contended that under subsection (2) of section 497, Cr. P. C., the opinion of the police will govern the question of bail till the conclusion of the trial and, in any case, till the conclusion of the inquiry; therefore, the accused were entitled to bail as of right. On the question of misuse of concession, counter-affidavits have been filed. It may be noted that in this case, the witnesses have not so far been examined before the learned committing Magistrate. Learned counsel for the petitioner has tried to argue that it is due to the delaying tactics of the accused-respondents, but I am not satisfied on this point because there is not sufficient material to come to that conclusion. In the second case, in my order granting the bail it was held that the opinion expressed by the police came within subsection (2) of section 497. I also held that the accused- respondents therein, in whose favour the opinion was expressed, were entitled on the basis of that opinion, as of right, to be released on bail/and that in such like cases this Court had no discretion to refuse bail. Syed Ali Raza, learned counsel for Sultan the first informant, has contended that on the basis of the statements of the eye-witnesses recorded By the learned committing Magistrate the accused-respondents have, by order dated 8-6-1971, been committed to stand trial for offences under sections 148, 302/149, P. P. C. Relying on some Supreme Court decisions, he has contended that after the commitment the accused- respondents cannot remain on bail. Mr. M. Saleern, learned counsel for the respondents, has addressed lengthy arguments on the question that the observations made by the Supreme Court cited by the learned counsel for the petitioner cannot be treated as law laid down by the Supreme Court and have to be read only in context of the cases which were before their Loidships; therefore, this Court is not bound by them. On merits, he has contended that the opinion of the police is a very strong factor, even after commitment, to be taken note of by the Court while considering the question of bail and that the commitment order per se is no ground for refusing bail. During the arguments, Mr. Saleern stated that the trial was to commence before the Sessions Court on or about the day that the arguments were to be heard on application for cancellation of bail in this Court, but he did not know whether the trial actually commenced and that if it commenced what happened thereafter.' The question that arises is whether as result of investigation by the police, a declaration by an officer-in-charge of the police station (which expression, admittedly, includes higher police officers) that the accused is innocent, entitles him to bail as of right, even if the allegation is of an offence punishable with death or transportation for life. In the judgment in Criminal Miscellaneous No. 6197 of 1970, no doubt it was held by me that such a declaration would be binding on the Court insofar as the question of bail is concerned and the accused would be entitled as of right to be released on bail. I was then of the view that there being no specific provision in subsection (2) of section 497, Cr. P. C., as to the stage till when such a declaration will enure for the benefit of accused, the wider interpretation entitling the accused to this benefit till the later stages could be adopted, in view of the principles applicable to the interpretation of statutes on crimes. After hearing the learned counsel for the petitioners in these two cases, I confess that the view then expressed by me is an extreme one. And even by applying the salutary principles of interpretation of statutes, an interpretation of subsection (2) of section 497 is possible so as to hold that the opinion of the police is, strictly speaking, not binding on the Court in bail matters. Subsection (2) of section 497, Cr. P. C. reads an follows "497.--(1) (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not
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reasonable grounds for believing that the accused had committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." This, when read in the context of subsection (1) of section 497, could as well have been made as second proviso to that subsection. The Legislature clearly intended to make certain exceptions to the prohibition contained in subsection (1) oi section 497. One clear exception visualized in subsection (2) is that if such officer finds the accused innocent of such offence he, under the law, is bound to release him on bail. There is no doubt about this proposition. If after an Investigating Officer declares an accused person innocent and the accused person demands from him that he should be released on bail and in spite of this the police officer refuses to release him on bail he would be committing an illegality because on such a finding by the police officer he is bound, under section 169 as well as under section 497(2), Cr. P. C., to release the accused on bail. There is no alternative for him. The same, however, does not necessarily apply to the Court. Both the forums, i.e. such officer or Court, are provided in subsection (2). In other words, either of them can come to a conclusion that there are no reasonable grounds to believe that the accused has committed such an offence. If they can come to this conclusion, they can also come to the contrary conclusion; namely, that reasdiiable grounds exist for believing that the accused has committed such an offence, if this is possible, then another very important possibility cannot be excluded, namely, that the police officer may come to a conclusion that there are no reasonable grounds for believing that the accused has committed such an offence, but when the matter is placed before the Court, it may come to a contrary conclusion that reasonable grounds exist for believing that he has committed such offence. A vivid and practical example can be visualized. Supposing a police officer, on the material placed before him by the complainant party, comes to the conclusion that no reasonable grounds exist for believing that such an offence has been committed by the accused. Supposing further that after such an opinion, the accused makes a confession, the evidence about which is otherwise reliable and is placed before the Court, and the Court on the basis of this fresh evidence comes to the conclusion that reasonable grounds exist for believing that he has committed such an offence. Obviously, subsection (2), even if it had earlier made it incumbent on the police officer to release the accused on bail, does not give any mandate to the Court that despite a belief contrary to the opinion of the police officer, it (the Court) continues to be bound by the earlier opinion of the police and has nb power to refuse the bail. As to which Court can cancel the bail in such a situation is a different matter, but the power cannot be denied to the Court. An interpretation, therefore, is possible that despite the opinion of the police officer one way or the other, the Court can form its own opinion on the material placed before it and can come to its independent conclusion as to the existence or otherwise of reasonable grounds for believing that the accused has committed such an offence.] If it comes to the conclusion that such grounds do not exist,' then, on this finding the accused, under subsection (2), becomes] entitled to be released on bail not because of any such earlier! conclusion by the police officer but because of an independent! conclusion by the Court. I, therefore, hold that when the Court! is considering the question of bail, the opinion of the Investigating] Officer is not binding on it. And to that extent, I agree with thel argument raised by Ch. Nazir Ahmad Khan and consequently modify my view expressed earlier in this behalf. In view of what I have said above, the contention of Mr. M. Anwar, that the opinion of the police officer will continue to be binding on the Courts till the conclusion of the trial and, in any case, till the conclusion of the enquiry, as discussed above, docs not necessarily follow from the provisions contained in subsection (2) of section 497, Cr. P. C. Therefore 1 decline to accept the same. One
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argument raised in this behalf, on the face, no doubt earlier appeared to me to be convincing; but on proper scrutiny, it is not found to be of impelling force so as not to change my view. The argument is that the expression used in subsection (2) namely, "but that there arc sufficient grounds for further inquiry into his guiit, the accused shall,----------------- ", indicates that the conclusion reached by the police officer in this behalf would continue to govern the bail matter during and till "further inquiry"; and because "further inquiry" includes commitment proceedings and also the inquiry into the guilt by the trial Court, therefore such a conclusion would govern the matter till the end of the trial. No doubt, as I have said above, the argument is very impressive, but in the context the expression is to be applicable to both; the officer as well as the Court and, as discussed above, a possibility cannot be ruled out that notwithstanding the conclusion by a police officer otherwise the Court, before and during the inquiry can come to a conclusion that such reasonable grounds do exist. If this is the situation, then the Court is not bound to release the accused on bail merely on the ground that "further inquiry" into his guilt is necessary. This consideration provided in subsection (2) would be attracted only if it appears to the Court that no such reasonable grounds exist. Therefore, as soon as a Court at any stage comes to a conclusion that reasonable grounds exist for believing that the accused has committed an offence punishable with death or transportation for life, it can refuse the bail because then the accused is not, as of right, entitled to it and if he is already on bail the same can be cancelled, subject of course to the provisions of subsection (5) of section 497, Cr. P. C., and the principles applicable to the question of cancellation of bail. In such circumstances, the mere fact that "further inquiry" i.s yet to be made will not make any difference. ji From the above discussion, an important question [irises, namely, if the police officer has released an accused on bail'mnder subsection (2) of section 497, which Court cat* cancel the bail on the finding that reasonable grounds exist for believing that the accused has committed such an offence. Specific provision for cancellation of bail is made in subsection (5) of section 497 which reads as follows :-- "497.--(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody." It is obvious that no Court other than a High Court or a Court of Session can cancel the bail under this provision unless the accused has been released on bail by itself. If the police officer releases an accused on bail under subsection (2), a Magistrate whether dealing with commitment or trial, cannot cancel the bail under section 497(5), Cr. P. C. This view has the support of Nasar Ahmad v. State (1), and an unreported case of this Court in Ibrahim and another v. State (Crl. Misc. No. 8628 of 1970). This case was also taken up to the Supreme Court in petition for Special Leave to Appeal No. 15 of 1971. Their Lordships of the Supreme Court did not make any adverse comment on the above expressed view. It may, however, be explained that the High Court and the Sessions Court have ample power to cancel such bail. Ch. Nazir Ahmad Khan has contended that the Magistrate would have power to cancel the bail under subsection (3) of section 173 after taking the cognizance. Reference is also made to the provisions contained in section 190, to show as to when cognizance is taken. It is doubtful whether the expression used in subsection (3), namely, "or otherwise as he thinks fit" empowers the Magistrate also to cancel the bail which has been granted, as of right, to the accused earlier and for the cancellation of which there is a specific provision in subsection (5) of section 497. As suggested by Mr. Saleern, it is quite possible that the above expression in the context means only this much that instead of discharging the accused of the bond submitted by him before the police, he may direct him to furnish another bond and or to furnish sureties in this behalf if the police had not earlier asked for the same. It is not necessary for
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me to give any conclusive finding on the question raised and the answer noted above, as this aspect of section 173 read with section 190, Cr. P. C., is not directly relevant in this case. It may be mentioned that Ch. Nazir Ahmad Khan tried to canvass the proposition that while submitting a report under section 173, Cr. P. C., the police is not competent to mention therein the fact that according to its finding any accused is innocent; therefore the general practice of the Investigating Officers to mention the name of a person whom they have found innocent, in column No. 2 of the challan report is without any legal support. I do not agree with him. Section 173 has to be read in the context of the other provisions contained in Chapter XIV of the Cr. P. C. Section 169 provides that if, upon an investigation under this Chapter, it appears to the police officer concerned that there is not sufficient material against an accused to justify his being forwarded to a Magistrate, such officer shall, if such person is in custody, release him on his [17] executing a bond with or without sureties for possible appearance before a Magistrate competent to take cognizance of the offence. Subsection (3) of section 173 provides that if from the report submitted under this section it appears that the accused has been released by the police on his executing a bond, the Magistrate shall pass an order either for the discharge of such bond or otherwise as he thinks fit. lt is, therefore, assumed in subsection (3) of section 173 that the report to be submitted under this section shall contain a reference to what has been done by the police under section 169. In other words, if the police has, after a finding of innocence, released the accused on his bond, this fact must be mentioned in the challan report. If that is so, then it is for the Provincial Government to prescribe the form in which this information is to be laid before the Magistrate, under section'173(1) (a) and there is nothing illegal or improper for the Provincial Government having made provision in column No. 2 in the challan report for this purpose, nor will it be proper for the police to mention such a fact in the last column of the challan where the facts and circumstarices of the case are to be mentioned. The argument of the learned counsel that such a report by the police is not in accord with the spirit of sub-clause (a) of subsection (1) of section 173, has also not convinced me. It is provided therein that, amongst other things, in the prescribed form information with regard to action under section 169, Cr. P. C., if any, would be mentioned. If the release on bond of the accused by a police officer is to be mentioned, it is not against the spirit of the provision to assume that the reason why he has been released on bail is also to be mentioned because primarily it will be on the basis of that reason that the Magistrate, when reading the report, will be making the order as provided in subsection (3) of section 173, Cr. P. C. The next important question that arises is: what is the general effect of the conclusion reached by the concerned police officer as to the innocence of an accused, on question of bail to be decided by a Court. After some argument, Ch. Nazir Ahmad Khan conceded that subject to his argument that the police cannot express such an opinion in the report under section 173, Cr. P. C., if such an opinion otherwise comes to the notice of the Court, it would be a relevant factor for consideration for the purpose of bail. He did cite a ruling of the Supreme Court, namely, Muhammad Ashraf v. The State (1) wherein some observations were made in respect of the opinion of police officer about the guilt of an accused person. But he subsequently conceded that the observations were made in the context of "finding of guilty", after the trial and not in respect of bail before or during the pendency of the trial. Mr. Saleern cited Piare Dusadh and others v. Emperor (2) and Connelly v. Prosecutions, Director of Public Prosecutions (3) in support of the proposition that the conclusion by the police is [18] relevant to be considered for the purpose of bail. The facts are distinguishable. Moreover, it has been held by superior Courts in Pakistan that the opinion of the police is not relevant fori the purpose of determining the guilt or otherwise of the accused, I, however, agree that for the purpose of considering the question of bail, there is a statutory
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provision contained in section 497(2) which should be treated as an addition to this rule/prindple. B The provision contained in subsection (2) has already been discussed above. When read with subsection (3), it specifically provides that the opinion as a result of the investigation by the police is definitely relevant for the purpose of bail. ln my view, the circumstance that the police officer concerned has come to a conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence will not only be a relevant factor but will be a very important consideration for the Court for deciding the question of bail. Here I agree with Mr. M. Anwar that if the investigating agency, which is an important instrument of State for the purpose of prosecuting offenders, itself is not willing to say that the accused is guilty, unless there are strong circumstances otherwise so as to come to another reasonable conclusion, the Court should not discard such a conclusion for the purpose of bail. This, of course, is subject to the condition that this conclusion would not be legally binding on the Court, it would also look anomalous that according to law (subsection (2) of section 497) till the bail matter is brought up before the Court and after such a conclusion by the police officer, the accused is entitled, as of right, to bail to be granted by the police but by mere initiation of the proceedings in Court, whether by way of specific cognizance or by way of consideration of bail matter, the entire position would change and what a moment earlier might be a right is taken away by mere initiation of such proceedings in Court. The correct position of somewhat conflicting course provided in subsection (2) of section 497 can be visualized, namely, that a conclusion by the police officer having given the right to the accused to be released on bail by that officer, will have strong influence on the Court for the purpose of bail (only) unless and until the Court comes to its own different finding that the conclusion of the police officer is wrong, ln this context, the conclusion of the police officer will continue to have a strong influence on the course to be. adopted by the Court for the purpose of bail. However, as the Court can come to a different conclusion, therefore it can be legitimately assumed that the law requires that the Court may come to a different conclusion but on some circumstances/material which was not before the police. One such circumstance which can be assumed in the facts of the present cases is that the Court might have recorded the statements of material witnesses including eye-witnesses, if any, in the presence of the accused who might have had opportunity to cross-examine these witnesses. This would clearly furnish fresh material to the Court to come to a different conclusion. An other possibility also cannot be excluded, namely, that even before the examination of the witnesses the Court may, on proper appreciation of materia! placed before it, come to the conclusion that Hhe opinion of thq police officer was mala fide or was obtained os a result of misrepresentation, fraud or other such taint. On such a finding, though tentative, the Court can refuse to rely on the conclusion of the police officer. In this context, the Court may also examine the reasons mentioned by the police officer for coming to such a conclusion. It is clarified that these two examples are, by no means, exhaustive of the situations when the Court would not follow the conclusion reached by the police officer. The examples might be multiplied but under the rider that the conclusion by the police officer would continue to influence the bail matter in Court subject to a finding by the Court otherwise on fresh and or better material. There is considerable case-law in Pakistan on the question of relevancy and influence of such an opinion by the police and/or the fact that the name of an accused person has been placed in column No. 2 of the challan report, for determining the question of bail. It is not necessary here to examine all the cases in any detail. One of the judgments on this question is by me in Criminal Miscellaneous No. 6197 of 1970, in which the cancellation of bail petition is now being considered and on which I have already modified my view. Incidentally, Mr. Saleern had been appeared for the accused whose right to remain on bail is now being defended by him. Some of the other cases
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may be mentioned. They are: Ch. Abdul Malik v. State (1), Haji Rehmat Khan v. The State (2), Ibrahim v. The State (3), Wali Muhammad v. Mian Muhammad Akbar and 2 others (4), Rehmat Wah alias Rehman v. State and another (5), Muhammad Nawas v. Khan Muhammad and 2…
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