2022 P Cr (PLP)

FAROOQ HAIDER, J.

Instant petition has been repeatedly called but petitioner/accused has not turned up today. Office report reflects that petitioner has even not furnished the bail bonds in compliance of order dated: 01.09.2020 passed by this Court. This is petition for pre-arrest bail where personal appearance of the petitioner is mandatory and in his absence, his bail petition is neither proceedable nor can be decided on merits; in this regard, guidance has been sought from the recent order dated: 29.07.2021 passed by the august Supreme Court of Pakistan in the case of "Shazaib and others v. The State and others"; relevant portions whereof are hereby reproduced: - "

2. As the petitioners did not personally appear, inspite of the repeated calls, before the High Court, their bail petition before the High Court could not have proceeded further in terms of section 498-A, Cr.P.C. ..." "

5. We are cognizant of the fact that before the addition of section 498-A in the Cr.P.C., the view of the High Courts was that once a petition for pre-arrest bail is admitted for hearing and notice is given to State, it has to be decided on merits notwithstanding the absence of the petitioner on the date fixed for hearing the petition. However, after the addition of section 498-A in the Cr.P.C., there are divergent views of the High Courts, on this point: one set of judgments still retain to the said view, while the other set of cases hold the view that the petition for pre-arrest bail is to be dismissed if the petitioner is not present in Court on the date fixed for hearing the petition and it is not be decided on merits in his absence, unless the Court exempts his presence. We approve the judgments of the High Courts noted above, which have considered the change in the legal position after addition of section 498-A in the Cr.P.C. and disapprove those that still retain the earlier view as they have not taken account of the true import and meaning of section 498-A, Cr.P.C." "

7. It is also clarified that in case the petition is dismissed for non-appearance of the accused in a pre-arrest bail matter under section 498-A, Cr.P.C., the petitioner can file a fresh bail petition before the same Court provided that he furnishes sufficient explanation for his non-appearance in the earlier bail petition and the Court is satisfied with his said explanation. But if he fails to furnish any satisfactory explanation, his second bail petition is liable to be dismissed on account of his conduct of misusing the process of Court disentitling him to the grant of discretionary relief of pre-arrest bail. In the present case, the High Court could not have dismissed the petition on merits, in addition to dismissing the same for non-prosecution due to the personal absence of the petitioner under section 498-A, Cr.P.C.; therefore, the observations of the High Court regarding the merits of the case are not sustainable and hereby set aside. The petitioners are free to file a fresh bail petition, if so advised, before the High Court by giving explanation for their absence before the Court in their first bail petition and if the Court is satisfied with their explanation, it would decide their petition on merits." "

8. It is also clarified that ad interim bail granted in a pre-arrest application on the first hearing is to simply ensure that the petitioner is present on all the subsequent dates of hearing in the pre-arrest bail matter. Petitioner's presence is, therefore, required throughout the proceedings of the pre-arrest bail petition and the fact that he appeared on the first date when ad interim bail was granted does not in any manner lessen the rigours of section 498-A, Cr.P.C. or absolve the responsibility of the accused from appearing in person before the court." In view of above, instant petition is dismissed for absence of the petitioner/accused as well as non-submission of bail bonds and ad interim pre-arrest bail already granted to him by this Court vide order dated: 01.09.2021, is hereby recalled. SA/M-186/L Petition dismissed.