09/06/2016
Magistrate can not grant bail u/s 496 crpc to accused who voluntary appears before him in bailable offence
P L D 2008 Karachi 492
Before Khalid Ali Z. Qazi, J
THE STATE--
Versus
MUHAMMAD AYOOB---Respondent
----S. 497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail unless the matter falls under one of the following categories viz., (i) if the person seeking bail has been placed under actual custody; or (ii) he appears in answer to a process issued by the Court; or (iii) he is brought before the Court by the police or by some other arresting authority---There is no legal concept of a "judicial custody" by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies, he cannot be construed to be in "custody".
Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5: Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali .v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.
(b) Judicial custody--
----Connotation---There is no legal concept of a "judicial custody by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies,' he cannot be construed to be in "custody".
(c) Criminal Procedure Code (V of 1898)---
----S. 497(5)-Penal Code (XLV of 1860), Ss.471/468/420---Cancellation of pre-arrest bail granted by Judicial Magistrate, refusal of---Accused had surrendered himself before the Judicial Magistrate who vide impugned order had admitted him to bail---Validity---Held, the order of the Judicial Magistrate admitting the accused to bail was not in consonance with law, since in essence the Magistrate had granted bail before arrest to him, when he had no such power---There was no concept of a "judicial custody" by way of 'a voluntary surrender before the Court---Unless and until the accused was under actual restraint or custody by the police or other law enforcing agencies, he could not be construed to be in "custody"---However, the case was not fit to cancel the bail granted to accused at such a belated stage for the very simple reason that on account of the Record and Proceedings having been consigned to High Court, the trial had been delayed by 6/7 years, for which the accused could not be attributed any blame---Even the Prosecutor-General had conceded that cancellation of bail at such a belated stage would cause undue hardship to the accused---Accused had been appearing on every date before High Court---Bail allowed to accused was not cancelled in circumstances.
Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.
(d) Criminal Procedure Code (V of 1898)---
---Ss. 497/498---Pre-arrest bail---Magistrate is not empowered to grant bail before arrest---Caveat on the legal plane added by High Court ,to take measures and precautions in respect of such powers of Magistrate after elucidating the concept enshrined in the settled law.
Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.
