1988 P Cr (PLP)

The applicant moved an application for bail before this Court which came up before my learned brother Mr. Abdur Razzak A. Thahim, J. on 23‑9‑1987 who was pleased to pass the following order: "The bail application came up for hearing in the morning. Learned A. A. ‑G. Mr. eyed Sarfraz Ahmed was directed to inform this Court and ascertain whether applicant has been arrested in this case. He appeared at 11‑30 a.m. and stated that applicant has not been arrested in this case. Mr. Khalid M. Ishaque submits that this application may be treated as bail before arrest. In these circumstances as the applicant is already present in the Court in other case and has been detained under M. P. U. it is argued that requirements of section 498‑A have been fulfilled. This application was placed before me according to Roster on the analogy that this application is after arrest. The difficulty of the learned counsel, in this application was that they were not sure whether applicant was arrested in the present case registered under section 409, P.P.C. Now the position is clear and in my view the pre‑arrest bail application will be considered for which this may be placed before the Hon'ble Chief Justice for further orders." Thereafter, this application was placed before his Lordship the Chief justice who was pleased to order that it may be placed before me. I have heard m/s. Khalid M. Ishaque and Raja Qureshi on behalf of the applicant and Mr. Abdul Ghafoor Mangi A.A.‑G. for the State. At the outset the following preliminary objections were raised by Mr. Abdul Ghafoor Mangi learned A.A.‑G:‑‑ (1) that the Incharge Sessions Judge has not decided the bail application of the applicant as an application for bail before arrest and therefore when it is treated as an application for bail before arrest then applicant should approach learned Sessions Judge first. (2) That no affidavit was filed before the learned Sessions Judge to show mala fides and apprehension of arrest. (3) That the grounds urged before this Court have also been urged before the Division Bench and therefore, it will not be appropriate to decide the above application on merits at this stage. M/s. Khalid M. Ishayue and Raja Qureshi have contended that the affidavit could not be filed as the applicant was in custody under M.P.U. That the order passed by the learned Incharge Sessions Judge itself shows that the arrest of the applicant was imminent and that the grounds of mala fide and apprehension, of arrest were mentioned in the bail application. In view of the order which I propose to pass in the above bail application it is not necessary to consider the merits of the case in one or .the other way as it might affect the case of one or the, other way. The order passed by the learned Incharge Sessions Judge rejecting bail application of the applicant shows that he had not considered the bail application as an application for bail before arrest, on the ground that no affidavit in support of the application is filed and, therefore, the application for grant of bail before arrest was not competent under law. In view of the above observation of the learned Incharge Sessions Judge and the objection raised by learned A.A.‑G. I am o the considered view that since the application of the applicant was not decided on merits for bail before arrest, it will be appropriate for the applicant to move the learned Sessions Judge at the first instance. Therefore, this application is not maintainable and is accordingly dismissed. S. A./ A‑246/ K?????????????????????????????????????????????????????????????????????? Application dismissed.