2007 PLP 1582 (YLR)

HASNAT AHMAD KHAN, J.--Through this petition, pre-arrest bail has been sought by the petitioners in a case F.I.R. No. 340 of 2006 dated 27-10-2006, under sections 395/389/384/ 337-H(ii)/148/ 149/147, P.P.C., registered at police station Fateh Sher, District Sahiwal.

2. Before submitting this application, petitioners moved similar application before the learned Sessions Judge, Sahiwal, who entrusted the same to Mr. Muhammad Zubair Aziz Cheema, learned Additional Sessions Judge, Sahiwal, before whom the application for pre-arrest bail moved by the petitioner came up for hearing on 13-12-2006 for confirmation of interim bail. On first call power of attorney was submitted by two learned Advocates who sought time to prepare the brief. The case was adjourned till 9-00 a.m. but when the case was called at 9-00 a.m. neither the petitioners nor their learned counsel turned up and the bail application was ordered to be put up at 11-00 O'Clock. Even at that time, neither the petitioners nor their learned counsel turned up and the learned Additional Sessions Judge proceeded to dismiss the said application on merits after hearing the learned D.D.A. and learned counsel for the complainant. After dismissal of said application, the petitioners have now approached this Court for grant of pre-arrest bail.

3. At the very out set, learned counsel for the petitioners was asked as to why the petitioners did not opt to appear before the concerned learned Additional Sessions Judge, but he could not explain their absence satisfactorily.

4. I have straightway observed that the pre-arrest bail application cannot be decided on merit in absence of the petitioner. For decision of this question, it would be relevant to have a cursory glance upon the provisions of Cr.P.C. relating to power of Court to grant bail. First of all, it would be relevant to understand the meaning of word "bail" itself. As it has been decided in various cases by the superior Courts, the basic meaning of word "bail" is to release a person from the custody of police and delivery into the c hands of surety who undertakes to produce the accused in the Court whenever, required to do so. This is a meaning which has been given to the word bail in standard English dictionaries. Chapter XXXIX of Criminal Procedure Code provides the relevant provisions laying down the principle and condition for grant of bail. Section 496, Cr.P.C. relates to bailable offences. Section 497, Cr.P.C. narrates the circumstances under which the bail may be taken in cases of non-bailable offences. Section 497(1), reads as under: "When any person accused of any 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, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years." Perusal of said provision of Cr.P.C. shows that bail may be granted to any person accused of any non-bailable offence if he is arrested or detained without warrant by an officer incharge of a police station or he appears or is brought before a Court. The words "appear" or "brought before a Court" are significant in this provision, which means the necessary condition for seeking bail is that either the accused should be brought before the Court or he appears before the Court. So perusal of this section leads to the conclusion that necessary ingredients for seeking bail are that the accused may be under arrest, secondly he may be in the detention and is brought before the Court and lastly is that he appears before the Court. While deciding the after arrest bail applications, the appearance of the accused naturally would not be necessary and being already in the custody he would be deemed to have been brought before the Court, but' in cases 1 of pre-arrest bail while granting the same, the appearance of the accused would be necessary as in that case while granting or confirming the pre-arrest bail the Court would be handing over the custody of the accused to his surety. Before 1976, the applications for seeking post-arrest bail and pre-arrest bail were being decided under sections 497 and 498, Cr.P.C. Thereafter, the legislature felt the necessity of addition of section 498-A, Cr.P.C. which reads as under:-- "No bail to be granted to a person not in custody; in Court or against whom no case is registered etc. Nothing in section 497 or section 498 shall be deemed to' require or authorize a Court to release on bail, or to direct to be admitted to bail any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail or a direction that a person be admitted to bail shall be effective only in respect of the case that so stand registered against him and is specified in the order or direction." Perusal of this provision would show that notwithstanding the provision of sections 497 and 498, Cr.P.C. the Court is neither required nor authorized to release any person on bail who is not in custody or is not present in the Court or against whom no case stands registered for the time being. Perusal of this provision would further show that for obtaining the order of the bail, either the accused should be in custody or he should be present in Court. The word pre-arrest bail has neither been defined in section 497 nor in section 498-A, Cr.P.C. but the reading of these provisions shows that bail can be granted not only to the person who is in custody but the same can be granted to the person who appears before the Court, meaning thereby, after surrendering of accused before the Court voluntarily, the Court is authorized to hand over his custody to his surety instead of giving such custody to the police. So this provision also makes it clear that in case for seeking of pre-arrest bail, presence of the accused is necessary.

5. Nov the question arises as to whether appearance of the accused on the first date of grant of pre-arrest bail is necessary or it is mandatory for the accused to appear on each and every date of the hearing of pre-arrest bail applications. Before the promulgation of section 498-A, Cr.P.C. it was view of the Courts that on the date of confirmation. of pre-arrest bail, the appearance of the accused was not necessary and it was optional and the Courts were bound to decide the same on merits and in the eventuality of non-appearance of the accused at the time of confirmation of bail, at the most the sureties could be penalized. In view of the divergent decisions is a case cited as "Shabbir Ahmad v. The State" (PLD 1981 Lahore 599) a Full bench of this Court was ' constituted which after going through the whole case-law and the relevant provisions finally settled the controversy once for all and held as under:-- "I am inclined to hold that the presence of the accused as mentioned in section 498-A, Cr.P.C. further strengthens the undertaking which the accused and his sureties give to the Court by furnishing bonds under section

499. It means to be obligatory for the accused to appear in Court on all subsequent dates after prohibitory order of his arrest was passed by the Court on surrender of his person, for he becomes custodia legis. This has also been observed by S.A. Rehman, J. in Sadiq Ali's case it is, however, discretionary for the Court to give him a direction not to appear if the Court chooses. I am also conscious of the fact that the practice which is brought to the notice of the Bench is that in certain cases the Sessions Judge lock the doors and get the accused arrested when they come to the conclusion that the accused is not entitled to bail after examining the ' allegations made by the prosecution. Courts are sanctuaries and the reverence must be shown. It is undesirable that the police arrests the accused in Court. In Suleman Khan and another v. The State 1975 SCMR 131 the august Supreme Court set aside the order of direction given by the High Court to take the accused in custody on refusal of confirmation of anticipatory bail. The lis?tinguishing feature of this case was that there was no coercive process issued against accused in the complaint case by the Magistrate of Gujranwala and the custody of the accused was not required by the police in connection with the F.I.R. registered under section 302/34, P.P.C. at another Police Station Kamoke. It would thus appear that the police of its own should not arrest in Court any accused person but the Court can give such a direction. If a request is made by the police in this behalf. The absence of the accused for a genuine cause has to be taken consideration by the Court and it should not take hasty steps without affording a reasonable opportunity of showing cause for his absence. In conclusion, therefore, I am of the view that there are different principles for pre-arrest and after arrest bail and the presence of the accused is necessary unless it is dispensed with by the Court. The case shall now go to the Single Bench for decision in the light of the above dictum. Before parting with the case, I feel obliged to pay compliments to Mr. M. B. Zaman who ably assisted this Court with his persuasive arguments and production of relevant case-law."

6. Perusal of said judgment would show that in cases of pre-arrest bail appearance of the accused at the time of confirmation of the same is mandatory and he is required to appear on each date of hearing till the decision of the main application. Only exception to that principle as laid down by the Honourable Full Bench is that the Court if so chooses can give him a direction not to appear.

7. Before the abovementioned decision of the Honourable Full Bench of this Court, august Supreme Court of Pakistan had already held as under:-- "In all cases of bail before arrest it is requirement that the petitioner should be present before the Court." In a case reported as "Muhammad Azam v. The State" (PLD 1987 Lahore 456), the pre-arrest bail application was dismissed on the ground that the accused had failed to appear before the learned Sessions Judge. Similar view was adopted by the Karachi High Court in a case reported as "Kalan Khan v. The State"? (1982 PCr.LJ 149), wherein, it was held that the bail before arrest cannot be granted to the accused who fails to present himself before the Court on the date of confirmation of the pre-arrest bail. Moreover, reference in this regard is made to a case reported as "PLD 1982 Lahore 214".

8. In so many cases it has been seen that the accused are exploiting the process of law. After getting ad interim pre-arrest bail, they do not opt to appear before the concerned Court on the date of confirmation of the same and decision on merit is insisted upon and in this way, they play hide and seek with the Courts and make mockery of law.

9. The decision of the pre-arrest bail in absence of the accused appears to be violative of the law laid down by the Honourable Full Bench of this Court and as such, the order dated 13-12-2006 passed by learned Additional Sessions Judge, Sahiwal, is hereby set aside. The bail application filed by the petitioner would be deemed to be pending. However, the police is restrained from arresting the accused for F four days so that they may appear before the concerned learned Additional Sessions Judge, provided they furnish surety bonds in the sum of Rs.1,00,000 (one lac) with one surety in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court. The petitioners are directed to appear before the concerned Court on 23-12-2006. Protective bail would automatically lapse on 23-12-2006. N.H.Q./Z-6/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.