1995 P Cr (PLP)

Ashiq Hussain v. The State 1989 SCMR 392 and Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 ref. Abdul Hafeez Pirzada, Abdul Mujeeb Pirzada, Mehfooz Yar Khan, Rana Ikramullah and Syed Khalid Shah for Applicant. Ikram Ahmed Ansari, Dy. A.‑G. and Qurban Ali Chohan, A: G. for the State, The learned Advocate‑General and the learned Deputy Attorney- General have appeared today in response to the notice. Learned Advocate General has raised a preliminary objection that in absence of any F.I.R. being lodged against the applicant, bail before arrest cannot be granted by this Court to the applicant even by invoking section 561‑A, Cr.P.C. Reliance has been placed by the learned Advocate‑General upon Syed Alimuddin Ahmad v. The State PLD 1985 Kar. 660 and Ashiq Hussain v. The State 1989 SCMR

392. In the first case, Abdul Hayee Kureshi, CJ. had observed that relief of bail under section 561‑A, Cr.P.C. cannot be granted in view of the specific provisions existing in this regard in the Code of Criminal Procedure in the form of sections 497, 498 and 498‑A. It was observed by the learned Chief Justice (as he then was) that bail implies a sort of restraint on the movement of an accused person and further connotes handing over of the custody of an accused person from the police to the surety. Therefore, unless a case is registered against a person, concession of bail cannot be extended in his favour. In the second case relied upon by the learned Advocate‑General, the Supreme Court made the following observations in this regard:‑‑ "Undoubtedly, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. But this does not mean that when the High Court has been moved under a specific section for a specific purpose, which in the instant case is section 497, Cr.P.C., and the relief prayed for is refused then the party aggrieved can invoke the jurisdiction of the High Court under section 561‑A, Cr.P.C. In the case of Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 which has been referred to in the judgment of the Lahore High Court, this Court examined the proposition as to when the inherent powers of the High Court can be invoked. The relevant portion is as under:‑‑ `I am conscious of the fact that general principle of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561‑A, Cr.P.C: can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does not cause injury to any of the parties. This is an inherent power of the Court and has been reserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr.P.C. with a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases'." It may be pointed out that so far as the case decided by the Supreme Court is concerned, nothing can be spelt out from the above observations to indicate that even under special circumstances the inherent powers conferred upon this Court under section 561‑A, Cr.P.C: cannot be invoked by this Court to grant bail to the applicant. Turning to the case decided by Mr. Justice Abdul Hayee Kureshi the applicant in the present case is not aware whether any other case besides the one which was registered under sections 403, 409, P.P.C. and section 5(2) of. Act II of 1947 against him by the Anti‑Corruption Establishment, has been registered for which he may be arrested. The evasive answer given by S.S.P. Khurshid Alain Khan to the learned counsel for the applicant, reference to which has been made in the order passed by me on 15‑1‑1995, clearly indicates that the applicant may be arrested in connection with a case of which he has no knowledge. Therefore, in my opinion, the facts of the present case are clearly distinguishable from those of the same reported in P L D 1985 Kar.

660. In view of the circumstances enumerated above, protective bail earlier granted to the applicant is extended till 30th January, 1995 as both the learned Advocate‑General as well as the Deputy Attorney‑General have sought times to inquire from the concerned prosecution agencies whether any other case is pending against the applicant. The case is accordingly adjourned to 30‑1‑1995, N.H.Q./L‑80/K Order accordingly.