1990 PCr (PLP)

(vi) Unreported order, dated 5‑7‑1989 passed by a learned Single Judge of the Lahore High Court in the aforesaid case of Lt.‑General Fazle Haq v. The State referred to hereinabove. In this order in para.4 the point in issue has been referred to and even the learned Advocate‑General Punjab, who was present in the case had not disputed the factum of jurisdiction of the Lahore High Court to grant interim protective bail. It may be advantageous to produce para. 4 of the above order, which reads as follows: "Para. 4.‑‑ As the offence, for which the petitioner seeks bail, was committed in Peshawar, the question of this Court's jurisdiction to hear this petition arose on the face of it. Learned counsel for the petitioner contends and the learned Advocate‑General, who states that he had received a copy of this petition and, therefore, thought it fit to be present, supports him, that this Court has the jurisdiction to grant anticipatory bail in the circumstances of the case. It is stated that 'the petitioner is in the Punjab touring with I.J.1 leaders on predetermined schedule of activity'. Reference is made to sections 54 and 58 of the Cr.P.C., by section 54 of the Cr.P.C. a police officer may, without any order from a Magistrate and without warrant, arrest any person, who has been concerned in any cognisable offence or against whom a reasonable complaint has been' made or credible information has been received or a reasonable suspicion exists of his having been so concerned and section 58 enacts that `a police officer may, for the purpose of arresting without warrant any person whom he ~is authorized to arrest under this Chapter, pursue such person into any place in Pakistan'. The contention is that the petitioner is under an imminent apprehension of arrest, for the offence is a cognisable offence and the police of N.‑W.F.P. can, under section 58 of the Cr Y.C. pursue' him into Lahore or for that matter any other place in the Punjab. In support of his contention, learned counsel refers to Muhammad Amin v. The State 1973 P Cr. L J 661 In that case, after an exhaustive survey of the case‑law on the subject, and examination of the relevant provisions of the Code of Criminal Procedure namely, sections 58, 86, 497 and 498 of the Cr.P.C. it was held that 'no specific provision exists in the Criminal Procedure Code to the effect that the provisions of section 498, Cr.P.C. are excluded in case of a warrant issued by a Magistrate of a different province for the arrest of a person residing in another province, therefore, even by implication it cannot be said that the powers under section 498, Cr.P.C. in the circumstances, are curtailed m any way' and that the High Court has, in such cases, power to grant bail This case was followed by this Court in Ch. Allah Ditta v. The, State 1989 P Cr. L J 2152. (vii) Unreported order passed on 11‑7‑1989 by a learned Single Judge of this Court in Yar Muhammad Rind v The State Criminal Bail Application No. 570 of 1989. In the above case F.I.R. was lodged at Police Station Dhadar, District Katchhi (Balochistan) under section 302/307/147/148/ 149, P.P.C. in which a learned Single Judge of this Court granted interim protective bail to the applicant in order to enable him to approach the competent Court. In the above case Mr. Abdul Hafeez Lakho, learned A.‑G., Sindh, who appeared for the State conceded the factum that this Court had jurisdiction but opposed the bail on merits, the relevant portion of the order reads as follows: "Mr. A.H. Lakho, A.‑G. has opposed the prayer on the ground that no case has been made out for imminent danger of arrest. He has submitted that in light of the authorities cited by the learned counsel, this Court has got the jurisdiction to consider the protective bail. This is an application for only protection so as to move to the competent Court for anticipatory bail. The applicant an para. 12 has submitted as under: That the applicant is a well‑known person and he seriously apprehends that he shall not only be arrested by the police in this concocted case if he enters Balochistan but he will be humiliated, tortured and harassed and, therefore, protection of this Honourable Court is being sought, in the interest of justice. The local police here has also been alerted and thus they are after the applicant. The applicant can't enter his own residence even in Karachi." (viii) Unreported order, dated 20‑7‑1989 passed by a learned Single Judge of this Court in Rao Ahmed Saeed Khan v The State Criminal Bail Application No. 597 of 1989 in which F.I.R. was registered at Police Station Civil Lines, Lahore, being F.1.R No. 167 of 1989, under sections 148/149/302/307 and 109, P.P.C. A learned Single Judge of this Court granted interim protective bail in order to enable the applicant to approach the competent Court but there is no discussion on the question in issue. (ix) Unreported order, dated 26‑7‑1989 passed by a learned Single Judge of this Court in Rao Ejaz Ahmed Khan v. The State Criminal Bail Application No. 615 of 1989, which was filed by a co‑accused of aforesaid F.I.R. No.167 of 1989 registered at Police Station Civil Lines, Lahore and the learned Single Judge by his aforesaid order admitted the applicant to interim protective bail. (x) Unreported order, dated '14‑9‑1989 passed by a learned Single Judge of this Court in Mahmood Spira v. The State Criminal Bail Application No. 789 of 1989 in respect of an offence under section 379/406, P.P.C registered at the office of Assistant Director F.I.A. Lahore, in case No.58 of 1989 dated 22‑7‑1989. In the above case also the learned Single Judge of this Court admitted the appellant to interim protective bail in order to enable him to approach the proper Court at Lahore. 5 From the above‑cited reported and unreported cases, it seems that the Lahore and Sindh High Courts have been consistently granting interim protective bail even in respect of an offence committed in a Province other than over which they have jurisdiction. However, except in the above case of Muhammad Amin v, The State 1973 P Cr. L J 661 and the aforesaid unreported order, dated 5‑7‑1989 of a learned Single Judge of the Lahore High Court in the case of Lt.,‑General (Retired) Fazl‑e‑Haq, there is no discussion on the question in issue, nor there is any detailed discussion in the aforesaid unreported order of Muhammad Haleem, J. quoted hereinabove, in which a contrary view was taken. In this view of the matter it may be pertinent to refer to some of the relevant provisions of the Cods, namely, sections 58, 61, 82, 83, 84, 85, 86 and

167. It may be observed that section 58 of the Code provides that a police party may, for the purpose of arresting without warrant any person whom he is authorised to arrest under this Chapter, pursue such person into any place in Pakistan. Whereas, section 82 provides that a warrant of arrest may be executed at any place in Pakistan. 1t may further be observed that section 83 empowers a Court to forward the warrant of arrest to any Magistrate or District Superintendent of Police outside the local limits of .its jurisdiction, whereas section 84 provides the procedure as to how a warrant of arrest if sent outside the limits or jurisdiction of a Court is to be dealt with and executed. It may further be stated that section 85 provides that if a warrant is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within twenty miles of the place of arrest or is nearer than the Magistrate or District Superintendent of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 76, be taken before such Magistrate or District Superintendent. It may also be pointed out that section 86 lays down that the Magistrate or District Superintendent shall if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court. The second proviso to the above section which was added by the Law Reforms Ordinance, 1972 provides that `provided further that, if the offence is not bailable or no direction has been endorsed under section 76 on the warrant, the Sessions Judge of the Sessions Division in which the person is arrested may, subject to the provisions of section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court'. It may also be stated that section 61 obliges a Police Officer to produce a person arrested without warrant before a Magistrate within a period of twenty‑four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whereas under section 167 remand order is to be obtained if an accused is to be detained from more than twenty‑four hours. In my view, if a Police Officer can pursue an accused person for the purpose of arresting him anywhere in Pakistan irrespective of the fact that the offence has been committed in a particular province if a warrant of arrest is executable anywhere in Pakistan, it must follow that the competent Court where an accused person is to be arrested by a Police Officer without a warrant of arrest or where he is to be arrested in execution of a warrant of arrest, should have jurisdiction to grant interim relief in a fit case, if the dictates of justice so demand in order to enable the accused person to approach the competent Court in the Province concerned for bail. The above view, which I am inclined to take is fortified by more than one reason namely: (i) that suppose if a Police Officer of the Punjab Police arrests an accused person at Karachi and if is unable to leave Karachi within twent‑four hours, he will have to obtain remand by virtue of section 167 read' with section 61 of the Code from a Magistrate at Karachi, who will have power to refuse remand order for a cogent reason; (ii) that if a warrant of arrest is issued by a Court at Lahore and is transmitted to Karachi for execution, the Karachi Court by virtue of endorsement under section 75 of the Code made by the issuing Court, will admit the accused person to bail; (iii) that in case of non‑bailable offence a Sessions Judge of the Sessions Division in which the person was arrested, may subject to section 497 of the Code grant interim bail by virtue of proviso 2 to subsection (1) of section 86 of the Code quoted hereinabove; (iv) that after the case Muhammad Amin (ibid) in 1973, the Lahore and Sindh High Courts have beep granting interim protective bail consistently in cases in which offences were committed in any other Province than over which they have respective jurisdiction without any contest by the learned Advocate‑General concerned as to their jurisdiction, and; (v) that the Court is always slow to deviate to disturb a practice which may be beneficial to accused persons.

6. As regards Mr. Nadeem's contention that by virtue of clause (4) of Article 192 of the Constitution the Parliament may by an Act extend jurisdiction of a High Court to any area of Pakistan not forming part of a Province, it may be observed that the above contention is devoid of any force as above clause refers to any area not forming part of a Province and, therefore, it refers to the Tribal Area and not to an area which may be a part of a Province.

7. As regards the question, whether this Court can initiate the contempt proceedings in case the bail order is flouted, as observed hereinabove, reliance has been placed by Mr. Memon on section 5 of the Act whereas Mr. Nadeem has referred to Article 204 in addition to relying upon the above section. The above section 5 of the Act reads as follow" "

5. Jurisdiction (1) A High Court or the Supreme Court, on its own information or on information laid before it by any person, may take cognizance of an alleged commission of contempt of the Court. (2) The Supreme Court shall have the power to take cognizance of any contempt of itself or of any Judge of the Supreme Court alleged to have been committed anywhere and a High Court shall have the power to take cognizance of any contempt of itself or of any Judge thereof' or of any other High Court or of any Judge thereof alleged to have been committed within the territorial limits of its jurisdiction. (3) A High Court shall exercise the same jurisdiction in respect X71` contempt of Courts subordinate to it or to any other High Court as it exercises in respect of contempt of itself. (4) Nothing contained herein shall affect the power of any Court to punish any offence of contempt under the Pakistan Penal Code (Act XLV of 1860)." It will suffice to observe that at this stage, it is not necessary to go into the above question as it will pre‑empt the contempt proceedings, which may ensue if the order of this Court is flouted. 8 For the reasons already discussed hereinabove, I am inclined to hold that this Court can grant interim protective bail in order to enable the applicant to approach the learned Session Judge at Multan and/or other competent Court. As regards the merits of the case, it may be observed that it has been alleged in the two applications that the applicant will be arrested as soon as he will enter into the territory of Punjab. It has also been alleged that the applicant being the Federal Minister has beer implicated on account of mala fides at the behest of the Chief Executive of the Province of Punjab in order to take revenge of Lt.-General Fazal Haq, who has been involved in a murder case at Peshawar. The name of the applicant does not figure in F.I.R. No.202 of 1.989, whereas in F.I.R. No. 199 of 1989 his name has been mentioned, who had allegedly convened a meeting and allegedly convened the remarks about the preparation of hit list and elimination of the persons referred to hereinabove but it is not alleged that he had in fact participated in the commission of the offence. Be that as it may, in my view, it is a fit case where the applicant may be granted interim protective bail.

9. I would, therefore, admit the applicant to interim protective bail for a period of two weeks from today in the sum of Rs. 2,00,000 (Rupees two lacs), one surety and P.R. in the like sum to the satisfaction of the Nazir of this Court in each of the above two applications in order to enable the applicant to approach the learned Sessions Judge, Multan and/or any other competent Court. The above interim protective bail shall stand lapsed without any further order on the expiry of two weeks from today. S.A./M‑993/K Bail granted.