PakistanLaw.

pk beta

Judgements Statutes Articles Message Board Community Members

IMTIAZ AHMAD Versus THE STATE

No comments yet. Be the first to comment

ORDER
AJMAL MIAN, J.--By this common order, we intend to dispose of the above two petitions
which are directed against a common order dated 9-12-1996 passed by a learned Single judge of
the High Court of Sindh in Criminal Bail Applications Nos.675196, 702/96, 731!96, 733/96,
734!96, 744196, filed b3 the preset two petitioners and the other co-accused who are chargea
with the offences under sections 161, 120, 120-B, 223, 224, 225, 427, 457, 166, 34 an( inn nn"
09 P.P.C read with section 5(2t of Act 11 of 194?; in connection with Crimp No.67 of 1996,
registered at Police Station 'C' Section, Sukkur, declining bail to the present petitioners and
admitting the other 11 co-accused to bail.
2. The brief facts are that in the night between 5th and 6th July, 1996, five dangerous criminals,
namely Gulsher Jagirani, Imdad, Ghulam Nabi Muhammad Moosa Malik, Najo alias
Najamuddin, who were involved in various heinous offences including murder and dacoity etc.,
escaped frog District Jail, Sukkur, after having caused aperture in a wall. The Deputy Inspector-
General of Prisons, Mr. U. A. Shaikh, suspected 33 employees of the jail staff including the
present two petitioners and the aforesaid applicants in the bail applications. On his complaint, the
afore-mentioned crime case was registered at the above Police Station. The case was investigated
by a police party headed by the Additional Superintendent of Police, Sukkur. The coaccused
Imam Dino Zangojo was arrested on '21-7-1996, who voluntarily produced instruments used in
making aperture in the wall which were provided to the escapees. He also made inculpatory
confession on the same day before a Magistrate -1st Class giving the detail of plan of the above
escape. After the aforesaid judicial confession, the police laid their hands on the other accused.
In the above confession major roles were attributed to the present two petitioners. After the
completion of the investigation, interim challan was submitted on 4-8-1996 against 16 accused
persons including the present petitioners. It seems that 15 of the accused persons applied for bail
to the Court of Special Judge, Anti-Corruption, Sukkur, but the same was declined by him on 26-
9-1996 for the following reasons :
"For the present there is sufficient evidence in the hands of prosecution tagging them with the
commission of heinous, crimes as alleged and charged-sheeted, especially aiding and abetting
escape of dangerous criminals, who are likely to ravish and endanger public peace and
tranquillity which is already at stake, against few coins and for their personal ambition. In my
view, quantum of sentence, which the
offences carry as enlisted against accused simplicitor could not be the sole criterion for grant of
bail to accused involved in the instant case, but its gravity and the manner in which incident took
place coupled with surrounding circumstances"=""> can be taken into consideration. A man of
an ordinary prudence cannot accept the incident as a"=""> routine offence, but it is obviously an
ambush. against whole society and an imminent hazard to the public peace. Investigating Agency
has yet to file final report with additional evidence"=""> very soon. The grounds urged by D.As.
require: deeper appreciation at bail stage which is not permissible."
3. After that the present petitioners and the other co-accused approached the High Court through
the aforementioned bail application, which were disposed of in the above terms. The present
petitioners and the other two coaccused Imam Dino Zangojo and Khadim Hussain were declined
bail for the following reasons:-
"It is true that grant of bail is the rule ,and its refusal is only an exception iii the offences not
punishable with death or imprisonment for life or imprisonment for ten years, but the Court
while granting or refusing the bail has to consider the nature of accusation and the gravity of the
crime. In this case because of deliberate and illegal act of applicants Guizar Ahmed, Imtiaz
Ahmed, Imamdinc and Khadim Hussain, the accused who had committed so many murders, have
absconded away. This case falls within the scope of exception and there `t'' are reasonable
grounds; to believe that the above named four applicants are guilty of the offences they stand
charged particularly of the offence punishable under section 5(2) of the Act II of 1947.
Accordingly, bail is refused to them."
The present two petitioners have, therefore, filed the above two petitions for leave to appeal.
4. In support of the above petitions Mr. Abdul Hafeez Lakho, learned Advocate Supreme
Court"=""> appearing for the petitioners, has urged that the two Courts below erred in refusing
bail to the"=""> present petitioners for .the following reasons:
1
(a) that all the offences except the offence, under section 5(2) of Act II of 1947 are bailable and
since the latter offence does not fall under the prohibitory clause under section 497, Cr.P.C., cite
two Courts below
"=""> erred in declining bail to the petitioners; t;.
(b) that the retracted judicial confession of a co-accused fluid the statements of the witnesses
recorded under section 161, Cr.P.C. after the expiry of about 15 days could not have been relied
upon by the Courts below for"=""> holding that there was material available on record to
implicate the present petitioners; .
(c) that since the 11 co-accused have been admitted to. bail by the High Court, the rule of
consistency demanded that the petitioners should also have been admitted to bail; and
(d) that the petitioner Gulzar Ahmed Channa was no longer Superintendent of Sukkur Jail at
the time when the incident had taken place but he was already transferred to Hyderabad as the
Superintendent Jail about more than a month before the incident and, therefore, prima facie, he
could not have been- saddled with the above criminal liability.
On the other hand, Mr. Ghulam Rabbani, learned Additional AdvocateGeneral, Sindh, who has
appeared on Court notice, has conceded that the present case is fit for grant of bail. .
5. I regret my inability to subscribe to the above concession made by the ' learned Additional
advocate- General. In my view, it is not a fit case which warrants interference by this Court in a
bail matter. l may now take a the above reasons advanced by Mr Abdul Hafeez Lakho in seriatim
6, Adverting to the above first reason, namely, that all the offences except the offence under
section 5(Z) of Act II of 1947 are bailable and since the latter offence does not fall under the
prohibitory clause under section 497, Cr.P.C., the two Courts below erred in declining bail to the
petitioners, it may be obhserved that by now it is a well-settled proposition of law that even in
respect of offences not falling under prohibitory clause of section 497, Cr.P.C. the' Courts may
decline to admit an accused to bail if there exists a recognised exceptional circumstances. This is
evident from the judgment of this Court in the case of Tariq Bashir and 5 others v. The State
PLD 1995 SC 34, in which some of the exceptional circumstances have been highlighted which
warrant refusal of bail in respect of the above offences but the above exceptional circumstances
are not exhaustive. In this case the learned Special . Judge as well as the learned Judge in
Chambers have addressed to themselves the above aspect in the , aforequoted extracts "The
instant case does not involve an ordinary criminal matter. The petitioners, who were holding
public offices and who were entrusted with the duty to ensure that the; under trial prisoners do
not escape, have allegedly actually participated in making possible the aforesaid escapees to
escape. The learned Special Judge in his above order dated 26-9-1996 has highlighted that the
above five escapees were involved to a number of heinous ~E crimes including murder, dacoity,
Hudood cases etc. The escapee Gulsher Jagirani alone has allegedly been involved in 14 cases.
The learned Special Judge has, therefore, rightly concluded that the above act on the part of the ,
accused persons have endangered public peace and tranquillity for few coins; whereas the
learned Judge in Chambers has found that the above case falls within the exception of the rule
that the bail is to be granted as a matter of rule ;~ in respect of offences carrying less than 10
years R.I. on account of nature of the offence involved. I am inclined to hold tentatively that the
above conclusion does not suffer from any legal infirmity.
7. I may observe that a distinction is to be made between an offence which is committed against
an individual like a theft and an offence which is directed against the society as a whole for the
purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by
an individual in his private capacity and an offence committed by a public functionary in respect
of or in connection with his public office for the aforesaid purpose of bail. In the former cases,
the practice to allow bail in cases not falling under prohibitory clause of section 497, Ci.I-.C, in
the absence of an exceptional circumstance may be followed, but in the latter category, the
Courts should be strict in exercise of discretion of bail. In my view, the above category of the
offenders belongs to a distinct class and they qualify to be treated falling within an exceptional
circumstance of the nature warranting refusal of bail even where maximum sentence is less than
10 years' R.I. for the offence involved provided the Court is satisfied that prima facie, there is
material on record to connect the accused concerned with the commission of the offence
involved,.
The Courts should not be oblivious of the fact that at present Pakistan is confronted with many
serious problems/difficulties of national and international magnitude, which cannot be resolved
unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by
illegal means has E penetrated in all walks of life. The people commit offences detrimental to the
society and the country for money. Some of the holders of the public office commit or facilitate
commission of offences for monetary .consideration in the above scenario the Courts' approach
should be reformation-oriented with the desire to suppress the above mischieves. To achieve the
above objective, it is imperative that the Courts should apply strictly the laws which are designed
and intended to eradicate the above national evils but at the same time, they are duty bound to
ensure that the above approach should not result in miscarriage of justice. It Should not be
overlooked that Article 9 of out Constitution, which relates to a fundamental right, guarantees
life anti liberty of every personal. Life, inter alia, includes the right to have access (c3 a fail and
independent judicial 1 forum for redress. A balance is to be struck between national and
individual interest/right.
8. The jail breaking resulting into escaping of the persons involved in heinous crimes, which is
detrimental to the society as a whole, is a crime of the nature which falls under the above second
category and, therefore, the Courts will be justified in appropriate cases not to. exercise
discretion in favour of public officers, who allegedly aided or abetted in the commission of such
crimes and who are also charged with an offence under. section 5(2) of Act II of 1947 or
under any other provision of the Pakistan Penal Code or the other law which offence is
non-bailable but carries sentence less than 10 years' R.I. In this regard reference may be
made to the following observations in Criminal Petition No.216-K of 1996 (Zeeshan Kazmi
v. The State PLD 1997 SC 267 = PLD 1997 SC 406) decided by this Court on 12-2-1997 while
forfeiting the entire amount of the bail bond :
"The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the
State functionaries/agencies which are entrusted with the duty to protect the life, property and
honour of citizens, either themselves actively participate in the commission of the heinous crimes
or they provide protective umbrella to the criminals. Their credibility has been denuded to the
extent that the victims of the crimes do not approach them for their help or protection which they
are otherwise entitled to as a matter of right under the Constitution."
In the instant case, the reasons found favour with the two Courts below cannot be said to be
perverse or contrary to law as to warrant interference by this Court in a bail matter.
9. As regards the second reason advanced by Mr. Abdul Hafeez Lakho, t namely, that the
retracted judicial confession of a co-accused and the statements of the witnesses recorded under
section 161, Cr.P.C. after the expiry of about 16 days could not have been relied upon by the
Courts below for holding that there was material available on record to implicate the present
petitioners, it will suffice to observe that this Court in the case of Lal Muhammad v. The State
1990 SCMR 315, decided by a Bench comprising Abdul Kadir Shaikh, Zaffar Hussain Mirza and
Naimuddin, JJ., declined to grant leave against an order of refusal of bail by the High Court
though the only evidence available against the accused was in the form of confessional statement
of co-accused. The relevant portion of the above order reads as under :
"On the night between lst and 2nd October, 1988, it is said that persons trespassed into the house
of Abdul Karim (deceased) and of gunpoint demanded money and jewelry from him. On his
refusal the culprits committed murder of Abdul Karim and his two sons. The crims was reported
by Bibi Hoor widow of Abdul Karim with Saddar Police Station, Quetta. During the
investigation 5 persons namely, La Muhammad petitioner, Muhammad Aslam, Mian Khan, Rozi
Khan and Abdul Wahid were arrested Petitioner applied for release on bail on the ground that his
name is not mentioned in the F.I.R. and the only evidence available with the prosecution consists
of confessional statements of co-accused Muhammad Aslant and Mian Khan which cannot
sustain his guilt on the charges levelled against him. Learned Additional sessions Judge, Quetta
rejected petitioner's request for bail on the ground that 'a prima facie case is made out against the
petitioner which disentitles him froth the grant of the bail , Thereafter, petitioner approached the
High Court with the same request but it was also rejected by the impugned order
mentioned"=""> above.
After having gone through the record of the case and the investigation papers made available by
the lea-nest Advocate-General we find that in refusing to release the petitioner on bail at this
stage, learned Judge it. the High Court has not violated any legal provision or principle of
governing bail in cases' such as this. The petition is, therefore, dismissed. "
10. The same view was reiterated by this Court while refusing leave in the case of Shah
Muhammad and another v. The State 1996 SCMR 981, to which one of us (Saiduzzaman
Siddiqui, J.) was a member.
11. Referring to the second limb of the above second reason that the statements under section
161, Cr.P.C. of the four persons referred to in the impugned order of the High Court cannot be
relied upon, reference may be made to an order of refusing leave in the case of Abdul Aziz v.
Saleh Muhammad 1990 SCMR 346. This case was also decided incidentally by the above same
Bench and in which it was held that the effect of the delay in recording statement of prosecution
witness could not be determined at bail stage and evaluation of his statement by comparing that
statement of other witnesses would also not be justified at that juncture.
12. Referring to the third reason of Mr. Abdul Hafeez Lakho, namely, that since 11 co-accused
have been admitted to bail by the High Court, the rule of consistency demanded that the
petitioners should also have been admitted to bail. it may be observed that the learned Judge in
Chambers tentatively sifted the material on record and has admitted 11 co-accused to bail in
respect of which no specific overt act was attributed. Whereas against the present two petitioners,
in the above judicial confession as well as in the statements under section 161, Cr.P.C. of above
four persons, namely, Iqbal Hussian, Manzoor Masih, Abdul' Khaliq and Sultan, overt act had
been attributed inasmuch as the petitioner Guizar Ahmed Channa had allegedly received
Rs.2,00,000 out of the total bribe 3 amount, whereas the petitioner Imtiaz Ahmed had allegedly
received Rs.40,000, which amount was also allegedly recovered from his possession. In this
view of the matter, the learned Judge in Chambers has rightly distinguished the case of inter alia
the present two petitioners from the aforesaid 11 co-accused who have . been admitted to bail
and the rule of consistency has not been flouted.
13. This leads me to the last reason of Mr. Abdul Hafeez Lakho, namely, that the petitioner
Gulzar Ahmed Channa was no longer Superintendent of Sukkur Jail at the time when the
incident had taken place but he was already transferred to Hyderabad as Superintendent Jail
about more than a month before the incident and, therefore, prima facie, he could not have been
saddled with the above criminal liability, it will suffice to observe that according to the judicial
confession, the major portion of the bribe money viz. Rs.2,00,000 had already been received by
the petitioner Gulzar Ahmed Channa and the plan to escape was hatched while he was
Superintendent Jail at Sukkur. It is also alleged in the above confession that even after the
aforesaid transfer, he ensured the commission of the above offence to justify the money paid to
him. It will not be 1 out of context to observe that this Court has repeatedly pointed out that it is
primarily a Constitutional Court and it does not interfere with the exercise of discretion by the
Courts below iii ciXse of gram or refusal of bail sty ions, as the same does not involve any
violation, of the principles of law enunciated by this Court. In this regard, reference may be
made to the case of Sultan Khan u. Amir Khan and another PLD 1977 SC 642, wherein
Muhammad Yaqub Ali, C.:. while declining a petition for leave to appeal made the following
observations:-- '
"However, since the Supreme Court is primarily a Constitutional Court and not expected to go
into matters concerning grant of bail by the High Court, we do not feel called upon to interfere
with the impugned order. The petition for leave to appeal is dismissed."
14. The same view was reiterated by this Court (a Bench comprising one of us--Ajmal Mian, J.,
Sajjad Ali Shah, J., as he then was, and Saleem Akhtar J.) in the case of Nasir Muhammad
Wassan and another v. The State 1992 SCMR 501 in the following words:-- .
"The Supreme Court is reluctant to interfere with such discretion unless it is exercised contrary
to the principles laid down by this Court, is it disregard of the principles governing the
administration of criminal
justice and/or is perverse. Reference can also be made to Hafiz Khuda Bux v. The State PLD
1988 SC 413, Arbab Ali v. Khamosi and others 1985 SCMR 195, Shahadat"=""> Ali v. Mubarak
Shah and another PLD1986 SC 347, and Mst. Bashiran Bibi v. Nisar Ahmed Khan PLD 1990 SC
83. We, therefore, dismiss the petition."
15. In my view, the learned Special Judge as well as the learned 'Judge in Chambers have
exercised discretion properly in refusing bail to the present petitioners. The above petitions have
no merits. Leave is refused.
. (Sd.) Ajmal Mian I agree but I have recorded a separate note.
(Sd.)
Saiduzzaman Siddiqui, J
I agree.
(Sd.)
Saleem Akhtar, J
SAIDUZZAMAN SIDDIQUI, J.--I have gone through the judgment proposed to be delivered by
my learned brother Ajmal Mian, J. in the above petitions, and while I generally agree with the
conclusion and reasoning of my learned brother, I have recorded a separate concurring note. The
facts of the case need not be repeated here as they are succinctly stated in the order of my learned
brother.
2. The petitioners are charged with the offences under sections 161, 120, 120-B, 223, 224, 225,
34, 427, 457, 166 and 109 Pakistan Penal Code, read with section 5(2) of Prevention of
Corruption Act (hereinafter to be referred at the 'P.P.C.' and 'the Act' respectively). Sections 34,
t09, 120 and 120-B, P.P.C. deal the offences relating to common intention, amendment,"="">
concealing design to commit offence punishable with imprisonment and criminal conspiracy
respectively. Offences under sections 34, 109 and 120-B are punishable in the same manner as
the offences in respect whereof common intention, abatement or conspiracy is alleged. However,
the punishment prescribed under section 120, P.P.C. is 1/4th of the punishment prescribed for the
offence in respect whereof concealment of design to commit offence is alleged and in the event
of noncommittal of such offence, the punishment is 1 /8th of the longest term of such
punishment or with such fine as is provided for the offence or with both. Therefore, punishments
under sections 34, 109, 120 and 120-B , P.P.C. are to be determined with reference to the
punishments prescribed for other substantive offences with which the accused or his accomplice
are charged. The petitioner, besides sections 34, 109, 120 and 120-B, P.P.C. are also charged in
the case with the offences under sections 161, 223, 224, 225, 427 and 45"7, P.P.C Out of these,
the offence under section 457, P.P.C. is cognizable and non-bailabtt. However, it is not disputed
before us that on the basis of the allegations contained in the F.I.R. and the material so far
collected by the prosecution
against the petitioners no case under section, 457, P.P.C. is made out against them. The other
offences alleged against the petitioners under sections 161, 223, 224, 25 and 427, P.P.C. are
described in the 2nd Schedule to the Code of Criminal Procedure, 1898 (hereinafter to be
referred as 'the Code' only) as bailable offences, though offences falling under sections 224 and
225, P.P.C. are cognizable while those falling under sections 161, 223 and 427, P.P.C. are non-
cognizable. It may, however, be mentioned here that on account of application of section 5(2) of
the Act the offence under section 161, P.P.C. alleged against the petitioners is to be treated as a
cognizable offence in view of section 3 of the Act, notwithstanding the fact that in the 2nd
Schedule to the Code, the offence under section 161, P.P.C. is described as a non-cognizable
offence. In addition to it, the offence of criminal misconduct under the Act alleged against the
petitioner is not only cognizable but is also non-bailable offence in view of the definition of
'bailable offence' and 'non-bailable offence' given in section 4(b) of the Code which is as
follows :
"(b) 'Bailable offence'. 'Non-bailable offence'. --'Bailable offence' means an offence shown as
bailable in the second schedule, or which is made bailable by any other law for the time being in
force; and 'non-bailable offence' means any other offence. " '
In view of the above definition of 'bailable' and 'non-bailable' offences given in the Code, it is
quite clear that except for offence of criminal misconduct alleged against the petitioners all other
offences with which the petitioners are charged, fall in the category of bailable offence. Grant of
bail in bailable
' offence, is governed by section 496 of the Code which reads as follows :
"496. In what cases bail to be taken.--When any person other than a person accused of a non-
bailable offence is arrested or detained without warrant by an officer incharge of a police station
or appears or is brought before a Court, and is prepared at any time while in the custody of such
officer or at any stage of the proceedings before such Court to give bail, such person shall be
released on bail: Provided that such officer of Court, if he or it thinks fit, may, instead of taking
bail from such person, discharge him on his executing a bond without sureties for his appearance
as hereinafter"=""> provided:
Provided further that, nothing in this section shall be deemed to affect the provisions of section
107, subsection (4), or section 117, subsection (3)."
The above provision makes it clear that except where a case falls within the provisions of section
107(4) or section 117(3) of the Code, a person accused of a bailable offence when arrested
without a warrant or detained by an officerin-charge of a police station or appear or brought
before a Court, is prepared at any time while in custody, to give bail, shall be released on bail.
Therefore, a"=""> person accused of a bailable offence, is entitled as of right to be released
on"=""> bail and grant of bail in such cases by the Court is not an act of grace or concession.
Even in cases where a person is accused of non-bailable offence and the case does not fall within
the prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither
death nor imprisonment for life nor 10 years, the grant of bail in such cases is a rule and refusal
an exception. My learned brother has referred in his judgment the decision of this Court in the
case of Tariq Bashir v. The State PLD 1995 SC 34 which also lends support to the above view
taken by me. It is, therefore, quite clear that refusal of bail to a person in a case where he is
entitled to its grant as of right, can only be justified on some statutory provision or on grounds
strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any
high principles of ethics or morality. It may be stated here that both under the Anglo-Saxon
concept of criminal jurisprudence as well as Islamic dispensation of criminal justice, the initial
presumption of innocence of an accused charged with a criminal offence is not dislodged until he
is proved guilty. Article 9 of the Constitution of Islamic Republic of Pakistan also provides that a
person will not be deprived of his life and liberty except in accordance with the law. Therefore,
bail cannot be refused in a case by way of punishment.
Having stated the above principle, I now proceed to examine whether refusal of bail to the
petitioners by the Courts below is open to interference by this Court. The petitioners are charged
with offences under sections 161, 120, 120-B, 223, 224, 225, 427, 457, 166, 34 and 109, P.P.C.
read with section 5(2) of the Act. I have already stated that the allegations against the petitioners
so far do.not disclose any case under section 457, P.P.C. The offences alleged against the
petitioners under other sections of P.P.C. except for offence under section 5(2) of the Act are all
bailable. As one of the offences alleged against the petitioners was non-bailable, the petitioners
could not claim release on bail as of right. The grant of bail to the petitioners by the Courts
below in these circumstances, was discretionary.
The confessional statement of the co-accused and the belated statement of witnesses recorded
under section 161 of the Code, could be looked into by the Courts for tentatively determining
whether the allegations against the petitioners disclosed a reasonable ground for believing that
the petitioners were guilty of a non-bailable offence, in view of the law laid down by this Court
in the cases of Lal Muhammad v. Shah Muhammad 1990 SCMR 315, Shah Muhammad and
another v. State 1996 SCMR 981 and Abdul Aziz v. Shah Muhammad 1990 SCMR 346, already
referred by my learned brother in his judgment. The finding recorded by the Courts below after
taking into consideration the confessional statement of co-accused and the statements of
witnesses recorded under section 161 of the Code, that the petitioners are prima facie guilty of
the offences alleged against them, therefore, does not suffer from any infirmity. The only other
question which now remains to be examined in this case is; whether the discretion exercised by
the Courts below in refusing to grant bail to the petitioners is open to be interfered by this Court.
This Court generally does not interfere with the discretionary order of grant or refusal of bail
passed by the Courts below unless such order is found to be opposed to some principles laid G
down by this Court or it is passed in violation of any law or principle governing the
administration of criminal justice or it is found to be perverse, arbitrary or fanciful as held in
Nasir Muhammad Wassan and another v. The State 1992 SCMR 501. The reasons given by the
Courts below in refusing to exercise their discretion in favour of petitioners by admitting them to
bail cannot be described as arbitrary so as to justify interference by this Court.
1, accordingly, agree with the conclusion of my learned brother and dismiss the bail application.
M.B.A./I-264/S Order accordingly

Discussion
Be the first to comment and start a discussion!