P L D 1976 Lahore 1021 (PLP)

Learned counsel appearing on behalf of the learned Advocate‑General states that despite information having been conveyed tot he police officials concerned about the orders of this Court no one has so far contacted the Advocate General's office. Otherwise too, none has appeared in Court, from the police. in reply to the notice issued by this Court on 5‑3‑1976. Question has arisen whether in the circumstances of this case this Court should not exercise powers under section 561‑A, Cr. P. C. to afford protection for a limited period, to the petitioner so that he may seek information about the registration of any case against him by directly contacting the police official concerned in person and also to seek the release of his son from the custody of the police, which is allegedly illegal. Learned counsel for the respondent states that he will inform some Law Officer to appear in the case and argue this matter. Adjourned. To come up after interval. Two allegations were made in this petition submitted under section 498 Cr. P. C. (i) that the petitioner was going to be arrested by the police and be sought bail before arrest ; and (ii) that his minor son named, Tabbasum was being illegally detained by Akhtar Hussain Shah A. S. I. concerned, so as to secure through this pressure the arrest of the petitioner.

2. The petition came up before me on 5‑3‑1976. The petitioner sur rendered to the custody of this Court but there was no certainty about the question whether a case has been registered against him or not. I issued notice to the learned Advocate‑General and at the same time made two directions: (a) requiring Akhtar Hussain Shah A. S. L, C. I. A. to appear with the record, if any, showing the accusation against the petitioner", with a view to ascertain as to whether there was a case registered against the petitioner; and (b) that the said A. S. I. should "produce Tabbasum son of the petitioner, who, it is alleged, is being detained illegally, so that he may be dealt with in accordance with law".

3. This morning Sardar A. Khalid, Advocate appeared on behalf of the Advocate‑General and stated that "despite information having been conveyed to the police officials concerned about the orders of this Court no one has so far contacted the Advocate‑General's office". Otherwise too, it was noted that "none has appeared in Court from the police in reply to CL notice issued by this Court on 5‑3‑1976". After noticing these circumstances, I posed the question as to "whether in the circumstances of this case, this Court should not exercise powers under section 561‑A, Cr. P. C. to afford protection for a limited period, to the petitioner so that he may seek information about the registration of any case against him by directly contacting the police officials concerned in person and also to seek the release of his son from the custody of the police, which is allegedly illegal".

4. Mr. Abdul Sattar Najam, Assistant Advocate‑General has taken me through the latest amendments in Criminal Procedure Code on question of bail as also the 4th amendment in the Constitution, whereby the provision has been made in Article 199 of the Constitution prohibiting "the making of an order for the detention of a person" who is required to be detained under any law providing for a preventive detention. He has contended that if the petitioner wanted, he could have made the application under Article 199 of the Constitution provided it is not a case of preventive detention, but he has not made any such petition. He has also tried to argue that though amend ment in Article 199 has not affected the jurisdiction under section 561‑A, Cr. P. C. that powers should not be exercised where the Cr. P. C. has made provisions to deal with a certain situation.

5. Raja Muhammad Muzaffar, Advocate acting as amicus curiae has expressed the view that the question posed does not relate to exercise of the powers of this Court to grant bail. The provisions relating to bail contained in sections 497, 498 and 498‑A, Cr. P. C. if applicable to the situation arising in this case, according to him, section 561‑A, Cr. P. C. would not apply; but in case the petitioner is not being allowed bail in any form either pre‑arrest or otherwise, this Court would have jurisdiction to pass proper orders under section 561‑A, Cr. P. C. to do "real and substantial justice". He has relied on Shahkot Bus Service, Shahkot v. The State and another (1969 S C M R 335) to support his above expressed view.

6. Learned counsel for the petitioner has relied on a case decided by myself Sh. Zahoor Ahmed v. The State (P L D 1974 Lah. 256) to contend that this Court has powers under certain conditions to prevent arrest under section 561‑A, Cr. P. C. for limited period. In the case of Sh. Zahoor Ahmed I had held as follows :‑ "Moreover, I am of the view that the direction prohibiting the arrest for very limited period, for the purposes, as are mentioned in section 561‑A, Cr. P. C. this course is permissible under the law. If such a protection is not afforded to a petitioner in a case like the present one, there could be a serious possibility (of course, depending upon the circum stances of each case) that when the Court is yet in the process of obtaining information from the State/Advocate‑General, the police might frustrate the entire proceedings and this might lead to injustice and/or further complicate the proceedings. Therefore, it is not only for the purpose of giving effect to an order of this Court relating to the collection of material for disposal of a petition pending before it but also for the purpose of preventing the abuse of its process as also for securing the ends of justice that in such like situations, which though would develop only rarely, this Court is competent to pass proper orders and give consequential directions under section 561‑A, Cr. P. C."

7. The 4th amendment in the Constitution has undoubtedly prevented the High Court from prohibiting the detention of a person, who would be required to be detained under the law relating to preventive detention. The limitation on the powers of the High Court thus imposed relates to the exercise of jurisdiction under Article 199 of the Constitution. If au application is made under section 561‑A, Cr. P. C. or the question arises while dealing with an application under section 498, Cr. P. C. the exercise of powers under Article 199 of the Constitution would not arise. Moreover, it would arise only when the person to be arrested is required to be detained under a law providing for preventive detention. In this case neither of the two situations arises. Application has been made for bail before arrest wherein question of release of a young boy has arisen under section 491, Cr. P. C. Undoubtedly,, the boy is not being detained under a law providing for preventive detention, therefore, the 4th amendment to the Constitution does not create any bar in so far as the exercise of powers under section 561‑A, Cr. P. C. is concerned. I have also carefully examined the argument of the learned Assistant Advocate General as to whether there is any specific provision in the Criminal Procedure Code which might provide for a case like the present one, namely preventing the arrest of a person which otherwise would fall under the three conditions in second part of section f61‑A, Cr. P. C. Undoubtedly, such a case is not of ball. The specific provision of bail in the Code of Criminal Procedure are not attracted and admittedly there is no other provision in the Code of Criminal Procedure dealing with such a case: of preventing the arrest but without allowing the concession of bail to the petitioner. Thus, the ruling cited by Raja Muhammad Muzaffar and the principle laid down in Shahkot Bus Service, Shahkot would apply in this case. The view expressed by me in the case of Sh. Zahoor Ahmed, relied upon by the learned counsel for the petitioner would also be attracted.

8. The police has failed to lay information before this Court in pur suance of the orders passed on 5‑3‑1976. The police is now generally under the impression that High Court or the Court of Session have no powers to grant anticipatory bail unless information is laid with regard to the registra tion of the case. If, and unless the information is laid, bail cannot be granted, the police would feel secured that they can do whatever they like. In this case a young boy of 12/13 years of age is stated to be in illegal detention of the police and for ulterior motive, they might continue doing illegal acts. This would amount to the abuse of process of this Court which has been set into motion through the filing of the petition under section 498, Cr. P. C. ; as also, by virtue of this Court having passed orders for the pro duction of records and for the production of the minor son of the petitioner. It cannot be ignored that now there is no alternative left for this Court except to depute a Bailiff to recover the minor son of the petitioner from the custody of Akhtar Hussain Shah A. S. I. It is in the circumstances of the case necessary that the petitioner should himself accompany the Bailiff so as to assist him in effecting the recovery. It has also become necessary due to the conduct of the police, in not laying information before this Court, that the petitioner should be enabled to approach the higher police officers without fear of arrest so that he may collect information about the registration of case/cases against him. This obviously would be to give effect to the orders of this Court already passed on 5‑3‑1976. It is otherwise too, necessary to pass proper orders to secure the ends of justice. In the circumstances of this case, therefore, keeping in view the limitations already spelled out in Sh. Zahoor Ahmed's case I direct (a) The petitioner shall not be arrested for 48 hours, i.e., till 12‑30 noon on 10‑3‑1976 ; (b) that a Bailiff of this Court be deputed at the expense of the petitioner to recover Tabbasum son of the petitioner from the custody of Akhtar Hussain Shah A. S. I. and produce him in this Court so that he may be dealt with in accordance with law, The petitioner shall accompany the Bailiff ; and ‑ (c) the petitioner shall approach Akhtar Hussain Shah A. S .I, who is hereby directed to give full information to him with regard to case, if any, registered against him. If the said A. S. I. fails or refuses to give information, the petitioner shall approach the Halqa Police Officer concerned.

9. Case to come up on 10 3‑1976 after interval.

10. Dictated in Court in presence of all the learned counsel. S.Q. Order accordingly.