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P L D 1966 Supreme Court 1003

Present : A. R. Cornelius, C. J., S. A. Rahman, Fazle-Akbar Hamoodur Rahman


and Muhammad Yaqub Ali, JJ

MUHAMMAD AYUB-Appellant

versus

(1) MUHAMMAD YAQUE

AND

(2) THE STATE-Respondents

Criminal Appeal No. E of 1966, decided on 5th October 1966.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 22nd December, 196'5, in Criminal Miscellaneous No. 3176 of 1965 and
judgment and order of the same Court, dated the 18th November, 1965, in Criminal
Miscellaneous No. 2864 of 1965).

(a) Criminal Procedure Code (Y of 1898), Ss. 498, 497 & 496-Bail-True nature and
scope of powers conferred on High Court and Court of Session by S. 498-Whether and to
what extent S. 498 ancillary and subsidiary to provisions of Ss. 496 & 497? Whether S.
498 does not enlarge categories of persons to whom bail can be granted under Ss. 496 &
497 and whether it does not make provision for situations and contingencies not covered
by Ss. 496 & 497? [dictum in Lala Jairam Das v. King Emperor 72 I A 121 fully
examined].

The question that fell for consideration before the Supreme Court was whether section
498, Cr. P. C., is only ancillary and subsidiary to the provisions of sections 469 & 497 of
the Code or whether that section could be construed to extend that power of the High
court or the Court of Session to grant bail under Section 497. The learned Judge
examined the true nature and scope 498 S A Rahman J with whom Cornelius C.J and
Fazle Akber, J concurred, was of the opinion that section 498, Cr P C is not to be
construed to extend the power of the High Court or, a Court of Session to giant bail in
cases where these Courts would not be competent to grant Bail under section 497 of the
Code. As against this a different view was expressed by Hamoodur Rahman, J. and Yaqub
Ali, J. The observations and reasons advanced by the Judges are as follows:-

Per S. A. Rahman, J. (Cornelius, C. J. and Fazle-Akbar, J., concurring):-A


consideration of the context in which it occurs would show that section 498 should apply
only to accused persons and not to those convicted of an offence. Section 426 of the Code
grants power of bail to the appellate Court, in respect of convicted persons. Subsection
(2) of that section expressly enacts that such a power may be exercised by the High
Court, in the case of an appeal by a convicted person to a Court subordinate thereto. That
section confers no such powers on a Court of Session. The very fact that express
conferment of this power in the case of the High Court is mentioned, excludes the
existence of a similar power in the case of a Sessions Court. If section 498 is so construed
as to include within its scope convicted persons, then its provisions would come into
conflict with section to far as the Court of Session is concerned. Indeed, on such a view,
the Court of Session would, under section 498 have power to grant bail to, a convicted
person appealing to the High Court. Such a construction, if possible, should be avoided.
Therefore, section 498 should be interpreted with reference to the context in which it
occurs and should be held confined to the case of an accused person once. It is to be
noticed that this section starts by saying that the amount of every bond executed under
this Chapter shall be fixed with due regard to the circumstances of the case and shall not
be excessive. The "bond" mentioned herein is obviously one to be executed by an
accused person. The context, therefore, shows that the power of bail too under this
section should be held limited to the cases of accused persons. The cases of convicts are
sufficiently provided for by sections 426 and 435 of the Code and there was no necessity
for repeating provisions regarding bail to them in section 498 of the Code.

This is one limitation which should be spelt out from section 498, when seen in the light
of the other provisions in the Code. The second, and the more important, limitation seems
to be that which confines the scope of section 498 in non-bailable cases to the category of
persons, visualized by section 497.

The word "appears" in sections 496 and 497 need not be construed to include voluntary
appearance, even in circumstances of grave apprehension of arrest. This word may be
taken to have been used in sections 496 and 497, in the same sense as in section 242 or
252 of the Code, which obviously contemplate appearance in answer to a process issued
by a Court. This interpretation will have the merit of saving section 498 in its own right.
The position that emerges then would be that under sections 496 and 497, Criminal
Procedure Code, the Court can bail out a person only if he has been placed under actual
custody or appears in answer to a process issued or is brought before the Court,
presumably by the police, or by some other arresting authority. In other words, these
sections apply where there has been an actual arrest attracting the Court's jurisdiction or
the Court is seized of the proceedings directly, in which bail is requested. Section 498,
however, would be called in aid, before the Court of Session and the High Court, even
where the Court is not seized directly of the proceedings in question and where no actual
arrest has been made so far but anticipatory bail is asked for, e.g., where the case is still at
a stage of investigation by the police or is pending in a subordinate Court. The power to
grant such anticipatory bail would thus be confined to the High Court and the Court of
Session and other Courts would be excluded from its scope. This interpretation would
seem to be consistent with the use of general expressions like "in any case" and "any
person" in section 498. The High Court or Court of Session would also of course have
concurrent as well as revisional powers, in respect of orders by the police or the
subordinate magistracy, in the matter of bail, under section 498, read with sections 496
and 497.

The contention that the generality of the words "in any u case" or "any person" occurring
in section 498, of the Code should be given full effect and the limitations imposed by
section 497 should not be held to govern section 498 of the Code, cannot be accepted for
if the High Court tries a murder case on the original side, the limitations on the grant of
bail specified in section 497, Criminal Procedure Code, would be fully applicable to the
High Court. They would also apply if action is taken under section 497 in respect of an
accused person who is actually under arrest by order of a subordinate authority.
Therefore, if the wider interpretation, suggested for the provisions of section 498 of the
Code, is adopted, then it would follow that the High Court's power gets enlarged in
respect of bail, in non-bailable cases, when a case is pending in a subordinate Court or is
under investigation by the police under that section, but it gets curtailed as soon as the
case comes up for trial before itself, so that section 497 gets attracted to the case. The
better view seems to be, that the policy of the law, in respect of bail to persons, accused
of non-bailable offences, is laid down in section 497 and the same policy should be kept
in view, while considering the question of bail under section 498, Criminal Procedure
Code. After all, judicial discretion has to be exercised, while granting bail and the power
conferred by section 498 of the Code cannot be construed to be purely arbitrary. In this
respect, therefore, section 498 of the Code seems to me to be "ancillary or subsidiary" to
sections 496 and 497 of the Code.

In other respects, however, section 498 occupies the position of a supplementary


provision in so far as it confers not only concurrent but revisional powers on the High
Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts
and the police and enables these Courts to exercise the power of anticipatory bail, in
suitable cases.

Per Hamoodur Rahman, J.-Taking into account the context in which section 498
appears and the wide words deliberately used in it in respect of the power of granting bail
it seems that it is in the nature of a residuary and supplementary provision giving to
superior Criminal Courts, namely, the High Court and the Court of Session, a wider
power to grant bail, in appropriate cases, to persons to whom bail cannot be granted
under sections 496 and 497. In what manner this power should be exercised or by what'
principles these superior Courts should be guided in exercising their discretion is an
altogether different question and should not, be taken into account for determining the
true scope of this section. There can be no doubt that section 498 gives extended and
wider powers to the High Court and the Court of Session but this power full will no doubt
normally be exercised in a reasonable and judicial manner taking into account the
limitations placed by other provisions of the Code upon subordinate authorities and that a
rule founded on justice and equity will not be disregarded unless there be exceptional
circumstances. But this is a self-imposed restriction and not a restriction imposed by
anything contained in the section. Normally this general salutary principle will no doubt
be kept in view and will not be lightly departed from but this should not be held to debar
the High Court and the Court of Session from deviating from it in exceptional cases or as
controlling the wide words of section 498 as a matter of construction of the section. This
principle is invoked in aid more as a precaution against the indiscriminate grant of bail
and not as a statutory clog upon the powers of these Courts.

Per Muhammad Yaqub Ali, J.---There is no warrant to import into section 498 the
ingredients of section 497. Sections 496 and 497 speak of bail and bonds. The first part of
section 498 emphasises that Courts and police officers shall fix their amount with due
regard to the circumstances of the case and shall not be excessive and the concluding part
empowers the High Court or the Court of Session to reduce the bail required by a police
officer or Magistrate. To this extent section 498 may be said to be ancillary to sections
496 and 497. The remaining part of the section which confers on the High Court or the
Court of Session the power to admit any person to bail in any case and whether there be
an appeal on conviction or not is, however, an independent provision. The plain meanings
of the words employed by the Legislature in section 498 cannot be departed from on any
rule of construction. The words "in any case" do away with the distinction made in
section 497 between cases punishable with transportation for life and death and cases
involving lesser penalty. Similarly the use of the words "any person" confer jurisdiction
in respect of persons who may not be under arrest and do not appear in obedience to a
process issued by the Court or are not brought before the Court as envisaged in section
497. It is the effect of these words which, justify grant of bail before arrest and not the
subtle difference between the words "release on bail" and "admit to bail" used in sections
497 and 498 respectively.

The High Court and Court of Session are not included in the term `Court' used in section
497. There will thus be no anomaly that the High Court and Court of Session while trying
cases will be subject to the limits imposed by section 497, for in either case their powers
in the matter of grant of bail will be the same. This, however, does not confer an arbitrary
power to grant bail on the High Court and the Court of Session. The policy of law is laid
down in section 497 and the Courts will act in aid of that policy, but there will always be
cases of exceptional nature in which bail may be granted notwithstanding the limitation
imposed by section 497. But if section 498 is held to be subsidiary and ancillary to
section 497 then the power to grant bail in such cases will be taken away.

Jairam Das and others v. King Emperor 72 I A 121; Crown v. Khushi Muhammad P L D
1953 F C 170; Gushtasab Khan v. Crown P L D 1956 F C 117; Khalid Saigol v. The State
P L D 1962 S C 495; Sadiq Ali v. The State Criminal Appeal No. K-3 of 1965
(unreported); Hidayatullah Khan v. The Crown P L D 1949 Lah. 21; Sardar Ataullah
Khan v. The State P L D 1963 Kar. 136; Ahmad and others v. The Crown P L D 1958
Lah. 280; Rasool Bakhsh and others v. The State P L D 1956 Kar. 381; Mir Ajam Shah v.
Mir Qadir Shah P L D 1965 Pesh. 23; Harsha Nath Pal v. State P L D 1959 Dacca 113;
Emperor v. Sourindra Mohan I L R 37 Cal. 412; Ashraf Ali v. Emperor I L R 42 Cal. 25;
Naranji Premji v. Emperor A I R 1928 Bom. 244 and Gul v. Emperor A I R 1928 Sind 142
ref.

(b) Precedents-Privy Council decisions, construction of statutes based on authority


of-Court in Pakistan would be loath to adopt 'new interpretation unless strong grounds
call for new interpretation. [Supreme Court-Practice.]

It is no doubt true that the decisions of Privy Council are no longer binding on the Courts
in Pakistan but they are nevertheless entitled even now to the highest respect and should
not be lightly departed from, particularly where the decision relates to law which is still
in force in the same form. The Privy Council was the highest Court of appeal, in regard to
cases arising in this country, till sometime after Partition, and unless strong grounds are
made out for rejection of a construction of a statute, hitherto accepted on the authority of
the Privy Council, the Supreme Court in Pakistan would be loath to adopt a new
interpretation of the relevant enactment.

(c) Criminal Procedure Code (V of 1898), Ss. 496, 497 & 498-Expression "released on
bail" in Ss. 496 & 497 and "to be admitted" to bail" in S. 498 Two expressions
synonymous. [S. A. Rahman, J.]

(d) Criminal Procedure Code (V of 1898) Ss. 496, 497 & 498-Bail-Word "appears" in
Ss. 496 & 497-Means: appearing in response to a process-Voluntary appearance not
included [decision in Sadiq Ali v. The State, Criminal Appeal No. K-3 of 1965
(unreported) modified]-Court under Ss. 496 & 497 can bail out person only if he has been
placed under actual custody or appears in answer to process issued or is brought before
Court by arresting authority-Anticipatory Pail-Attracts provision of S. 498. [S. A.
Rahman, J.

M. B. Zaman, Senior Advocate Supreme Court instructed by Salim Ahmad Malik,


Attorney for Appellant.

Abdul Aziz Qureshi, Advocate High Court, briefed with Hassan Ali Shah, Advocate
Supreme Court instructed by Ghulam Mohyuddin, Attorney for Respondent No. 1.

Saeedur Rahman Khan, Advocate Supreme Court, instructed by Ijaz Ali, Attorney for the
State.

Dates of hearing: 13th and 14th April 1966.

JUDGMENT

S. A. RAHMAN, J.-This appeal, by special leave, raises, inter alia, the question of the
exact scope of powers, conferred on the High Court and the Court of Session, by section
498 of the Code of Criminal Procedure. The question has arisen in the following
circumstances:

Muhammad Yaqub, respondent, was committed, along with others, on a murder charge,
for trial by the Court of Session. He moved a petition for bail before the High Court
which was dismissed by a learned Single Judge of the High Court, on the 15th October
1965. Three days later, on the 18th October 1965, he moved another petition in the High
Court for bail, which came up for hearing before a different Judge. He was then granted
bail, on his furnishing security in the sum of Rs. 8,000, with one surety in the like
amount, to the satisfaction of the Additional District Magistrate, Lahore, by order, dated
the 18th of November 1965, after notice to the State. The appellant, who was the
complainant in the case, preferred a petition for cancellation of the bail, granted to the
respondent in the High Court. This petition was dismissed by the same learned single
Judge, who had granted bail, by order, dated the 22nd of December 1965.

Special leave to appeal was granted, as it was contended, on behalf of the appellant, that
no fresh ground had been urged in the second petition for bail, such as could justify
re-opening of the matter in the High Court. It was further urged that section 498 of the
Code of Criminal Procedure did not enlarge the powers of the High Court to grant bail in
cases, not covered by section 497 of the Code.

The commitment order was passed in this case on the 1 st September 1965, but, we
understand, that the trial has not concluded as yet.

Mr. M. B. Zaman, on behalf of the appellant, strongly relied on Jairam Das and others v.
King Emperor (72 1 A 121), Crown v. Khushi Muhammad (P L D 1953 F C 170),
Gushtasab Khan v. Crown (P L D 1956 F C 117), Khalid Saigol v. The State (P L D 1962
S C 495) and a recent decision of this Court in Criminal Appeal No. K-3 of 1965 Sadiq
Ali v. The State disposed of by order, dated the 22nd March 1966, for the proposition that
section 498 of the Code of Criminal Procedure does not, in any way, enlarge the
categories of persons to whom bail can be granted under section 496 or 497 of the Code,
as the first-named section is merely encillary or subsidiary to these two sections. These
cases undoubtedly support the stand, taken by the learned counsel for the appellant. The
decisions of the Federal Court and this Court are based on the dictum of their Lordships
of the Privy Council in Jairam Das's case which has remained unquestioned so far. On the
other hand, Mr. Abdul Aziz Qureshi, Advocate, High Court, who was allowed to argue
this appeal, on behalf of Respondent No. 1, as he was accompanied by an Advocate of the
Supreme Court, in the person of Mr. Hassan Ali Shah, suggested that this Court was not
bound to follow the dictum of the Privy Council add that it should be found that the
powers of the High Court and the Court of Session, under section 498 of the Code, are
unfettered by anything contained in sections 496 and 497. He invited our attention to a
Full Bench judgment of the Lahore High Court, reported as Hidayatullah Khan v. The
Crown (P L D 1949 Lah. 21), Sardar Ataullah Khan v. The State (P L D 1963 Kar. 136),
Ahmed and others v. The Crown (P L D 1958 Lah. 280) and Rasool Bakhsh and others v.
The State (P L D 1956 Kar. 381). Out of these, the cases of Rasool Bakhsh and others and
Sardar Ataullah Khan are Single Bench decisions by Waheeduddin; J., of the High Court
of West Pakistan. Another Single Judge of the same High Court, belonging to the
Peshawar Bench in Mir Ajam Shah v. Mir Qadir Shah (P L D 1965 Pesh. 23), expressed a
different view, in conformity with the Privy Council judgment. The 'decisions cited take
the wider view of section 498, Criminal Procedure Code.

The question had been examined by me in Sadiq Ali's case fully, after a review of the
case-law on the subject. It was held therein that the decision in Khushi Muhammad's case
took an unduly restricted view of the scope of section 498, Criminal Procedure Code,
read with sections 496 and 497 thereof, in so far as it ruled out the possibility of grant of
bail to a person under imminent threat of arrest without a warrant, by the Police. In this
respect, though it was recognised that a part of the reasoning in Hidayatullah Khan's case,
was open to the criticism that found favour with the Federal Court in Khushi
Muhammad's case, yet it was decided that on a proper reading of the relevant sections, it
was justifiable to extend the rule laid down by the Federal Court to a direction for the
grant of bail to a person whose arrest on a criminal charge by the Police, without a
warrant, was inevitable and certain, where the circumstances of the case would justify
that course, in agreement with the decision in Hidayatullah Khan's case. However the
submission that the dictum of their Lordships of the Privy Council in Jairam Das's case
may call for reconsideration requires that the relevant provisions of the Code should be
construed afresh, without being influenced by the judgment of the Privy Council.

The Privy Council thought, while deciding Jairam Das's case that Chapter XXXIX of the
Code of Criminal Procedure dealt exclusively with the subject of bail to accused persons,
the question of grant of bail to convicts being dealt with fully in section 426 of the Code.
Apparently, their Lordship's attention was not drawn to the provisions of section 435 of
the Code, which enable the High Court or a Sessions Judge or a District Magistrate or a
specially empowered Sub-Divisional Magistrate, to "call for and examine the records of
any proceeding before any inferior Criminal Court, for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed, etc. and empowers them, when calling for such record, to direct that
the execution of such sentence be suspended and if the accused is confined, that he be
released on bail or on his own bond pending the examination of the record". It would be
more correct to say therefore that the question of bail to convicted and accused persons is
exhaustively dealt with in sections 426 and 435 and Chapter XXXIX of the Code. Under
section 426 there is exercise of appellate jurisdiction and under section 435 that of
revisional jurisdiction whereas the subject of bail to accused persons, prior to conviction,
forms the subject of Chapter XXXIX and is partly covered by section 435.

Section 496 is the first section of Chapter XXXIX of the Code and prescribes that

"when any person, other than a person accused of a non bailable offence, is arrested or
detained without a warrant, by an officer in charge of a police station, or appears or is
brought before a Court, and is prepared at any time, while in the custody of such officer
or at any stage of the proceedings before such Court, to give bail, such person shall be
released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from
such person, discharge him on his executing a bond without sureties for his appearance as
hereinafter provided:

Provided, further, that nothing in this section shall be deemed to affect the provisions of
section 107, subsection (4) or section 117, subsection (3)."

Section 497 which follows it, concerns persons accused of non-bailable offences in
contingencies similar to those envisaged by section 496. This section too provides that
such a person may be released on bail, but it is added that he shall not be so released "if
there is reasonable ground for believing that he has been guilty of an offence punishable
with death or transportation for life". This limitation is further qualified by a proviso to
the effect that "the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence, be released on bail".
Subsection (2) of this section lays down that "if it appears to such officer or Court at any
stage of the investigation, inquiry or trial, as the case may be, that there are not
reasonable grounds for believing that the accused has committed a non-bailable offence,
but that there are sufficient grounds for further inquiry into his guilt, the accused shall,
pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on
the execution by him of a bond without sureties, for his appearance as hereinafter
provided". Subsection (3) enacts that "an officer or a Court releasing any person on bail
under subsection (1) or subsection (2) shall record in writing his or its reasons for so
doing". Subsection (4) is designed to meet a situation where at any time after the
conclusion of the trial of a person accused of a non-bailable offence and before judgment
is delivered, the Court forms an opinion that there are reasonable grounds for believing
that the accused is not guilty of any such offence. This subsection enables the Court, in
these circumstances, to release the accused, if he is in custody on the execution by him of
a bond without sureties for his appearance to hear judgment delivered. Subsection (5)
empowers the High Court or Court of Session and, in the case of a person released by
itself, any other Court to order the re-arrest of a person and to commit him to custody if
he had been granted bail under this section.

The succeeding section 498, is in these terms:-

"The amount of every bond executed under this Chapter shall be fixed with due
regard to the circumstances of the case, and shall not be excessive; and the High
Court or Court of Session may, in any case, whether there be an appeal on
conviction or not, direct that any person be admitted to bail, or that the bail
required by a police officer or Magistrate be reduced."

Learned counsel for the respondent has stressed the words "in any case" and "any person"
occurring in section 498 and has argued that this section confers unfettered discretion on
the High Court and the Court of Session to grant bail, irrespective of the limitations
imposed by section 497. He also pointed out that section 498 uses the expression "to be
admitted to bail" as distinguished from the words "released on bail", occurring in sections
496 and 497.

In Hidayatullah Khan's case, which was a Full Bench decision of the Lahore High Court,
the view was undoubtedly expressed that the words "admitted to bail", do not bear the
same connotation as "released on bail". This interpretation, however, was not accepted by
the Federal Court in Khushi Muhammad's case and again, recently by this Court in Sadiq
Ali's appeal. It was observed that these two expressions are synonymous as was borne out
by their being used in the same sense in several sections of the Code. Reference in this
section may be made to the language of sections 51, 62, 426,427, 500 and 563(2) of the
Code. The two expressions appear to have been used interchangeably in the Code and I
do not see any reason to revise the opinion which I expressed in Sadiq Ali's case on this
point, even after hearing the arguments advanced at the Bar in this case.

The main question that calls for consideration is whether section 498 is only ancillary or
subsidiary to the provisions of sections 496 and 497 of the Code, or in any sense, makes
provision for situations and contingenies not covered by these sections? In the case of
Jairam Das, the question before the Privy Council was whether section 498 enabled the
High Court to grant bail to a person, who had applied for special leave to appeal to the
Privy Council, after his conviction had been upheld by the High Court. Their Lordships
expressed the positive opinion that section 498 did not cover the case of a convicted
person, despite the expression found in this section, viz., "whether there be an appeal on
conviction or not". These words were construed to mean that the case of an accused
person would be covered by this section, irrespective of whether, on conviction, his
sentence be appeal-able or not. It is true that this Court is no longer bound to accept the
opinion of the Privy Council if good reason is shown for departing from it. The Privy
Council, however, was the highest Court of appeal, in regard to cases arising in' this
country, till sometime after the Partition and unless strong grounds - are made out for
rejection of a construction of a statute hitherto accepted on the authority of the Privy
Council, this Court would be loath to adopt a new interpretation of the relevant
enactment. Are there then any overriding considerations, which would justify a different
construction of section 498 from that adopted by the Privy Council?

A consideration of the context in which it occurs would show that section 498 should
apply only to accused persons and not to those convicted of an offence. As was pointed
out by the Privy Council, section 426 of the Code grants power of bail to the appellate
Court, in respect of convicted persons. Subsection (2) of that section expressly enacts that
such a power may be exercised by the High Court, in the case of an appeal by a convicted
person to a Court subordinate thereto. That section confers no such powers on a Court of
Session. The very fact that express conferment of this power in the case of the High Court
is mentioned, excludes the existence of a similar power in the case of a Sessions Court. If
section, 498 is so construed as to include within its scope convicted persons, then its
provisions would come into conflict with section 496, so far as the Court of Session is
concerned. Indeed, on such a view, the Court of Session would, under section 498, have
power to grant bail to a convicted person, appealing to the High Court. Such a
construction, if possible; should be avoided. I am, therefore, inclined to the opinion
that-section 498 should be interpreted with reference to the context in which it occurs and
should be held confined to the case of an accused person only. It is to be noticed that this
section starts by saying that the amount of every bond executed under this Chapter shall
be fixed with due regard to the circumstances of the case and shall not be excessive. The
"bond" mentioned herein is obviously one to be executed by an accused, person. The
context, therefore, shows that the power of bail too under this section should be held
limited to the case of accused persons. The cases of convicts are sufficiently provided for
by sections 6 and 435 of the Code, and there was no necessity for repeating provisions
regarding bail to them in section 498 the Code.

This is one limitation which the Privy Council thought should be spelt out from section
498, when seen in the light of B the other provisions in the Code. The second, and the
more important, limitation seems to be that which confines the scope of section 498 in
non-bailable cases to the category of persons,) visualized by section 497, and I proceed to
examine that, point.

This question, it is true, was not before their Lordships of the Pivy Council, directly. It is
maintained, on behalf of the respondent, that the word "appears", occurring in sections
496 and 497 of the Code, should apply only to a person, appearing in response to a
process, issued by a Court and should not be held to include voluntary appearance by a
person, seeking bail. In Sadiq Ali's case, keeping the dictum of the Privy Council in view,
I had expressed the opinion that the word "appears" need not be so confined. It, is,
however, pointed out by learned counsel for the respondent that with the adoption of this
connotation of the word "appears" in the general dictionary sense, the result would be that
section 498 itself would seem to become redundant. No statutory definition of the word
"appears" is given in the Code and the question what precise meaning should attach to it
is an open one. The word "Court" in sections 496 and 497, obviously includes the Court
of Sessions and the High Court. If by voluntary appearance, when the person concerned
is under immediate apprehension of arrest, either under a warrant issued by a subordinate
Court or without warrant, by the police, grant of bail becomes possible by order of the
Court, without the Court being directly seized of the case, under section 497, there would
appear to be no need to have recourse to section 498, Pakistan Penal Code, at all. The
argument has some force. On further reflection, therefore, I have come to the conclusion
that the view in Sadiq Ali's case may require a little modification in so far as the word
"appears" in sections 496 and 497, need not be construed to include voluntary
appearance, even in circumstances of grave apprehension of arrest. This word may be
taken to have been used to sections 496 and 497, in the same sense as in section 242 or
252 of the Code, which obviously contemplate appearance in answer to a process issued
by a Court. This interpretation will have the merit of saving section 498 in its own right.
The position that emerges then, would be that under sections 496 and 497, criminal
procedure Code that Court can bail out a person only if he has been placed under actual
custody or appears in answer to a process issued or is brought before the court arresting
authority. In other words, these sections apply where there has been an actual arrest
attracting the Court's jurisdiction of the Court is seized of the proceedings directly, in
which bail is requested. Section 498 however would be called in aid, before the court of
Session and High court even where the Court is not seized directly of the proceeding is
question and where no actual arrest has been made so far but anticipatory bail is asked for
e.g where the case is still at a stage o investigation by The police or is pending in a
subordinate Court. The power to grant such anticipatory bail would thus be confined to
the High Court and the Court of Session and other Courts would be excluded from its
scope. This interpretation would seem to be consistent with the use of general expressions
like "in any case" and "any person" in section 498. The High Court or Court of Session
would also of c9urse have concurrent as well as revisional powers, in respect of orders by
the police or the subordinate magistracy, in the matter of bail, under section 498, read
with sections 496 and 497 as was held by the Federal Court in Khushi Muhammad's case
and by this Court in Sadiq Ali's case.

It was next contended, on behalf of the respondent, that the generality of the words "in
any case" or "any person", occurring in section 498, Criminal Procedure Code, should be
given full effect, and the limitation on bails, in respect of non-bailable offences, imposed
by section 497, Criminal Procedure Code, should not be held to govern section 498,
Criminal Procedure Code.

After giving serious consideration to - this question, I have reached the conclusion that
the contention cannot be acceded to, for it might lead to anomalous results.

Section 28 of the Code declares that "subject to other provisions of this Code, any
offences under the Pakistan Penal Code may be tried by the High Court, or by the Court
of Session, or by any other Court by which such offence is shown in the eighth column of
the Second Schedule, to be triable". Section 194 further provides that the High Court
may take cognizance of any offence upon a commitment made to it, in manner hereinafter
provided. The Advocate-General may, also, with the previous sanction of the Provincial
Government, exhibit to the High Court informations, for all purposes for which Her
Majesty's Attorney-General may exhibit informations, on behalf of the Crown, in the
High Court of Justice in England. Section 526 of the Code too enables the High Court to
transfer, in appropriate circumstances, a case pending in a subordinate Court, for trial to
itself. If then the High Court tries a murder case on the original side, the limitations on
the grant of bail specified in section 497, Criminal Procedure Code, would be fully
applicable to the High Court. They would also apply if action is taken under section 497
in respect of an accused person who is actually under arrest by order of a subordinate
authority. If, however the wider interpretation, suggested for the provisions of section 498
of the Code, is adopted than it would follow that the high court’s power gets enlarged in
respect of bail in non-bailable cases when a case is pending in a subordinate court or is
under investigation by the police under section but it gets curtailed as soon as the case
comes up for trial before itself so that section 497 gets attracted to the case. The better
view seems to me to be, that the policy of the law, in respect of bail to persons, accused
of non-bailable offences, is laid down in section 497 and the same policy should be kept
in view, while considering question of bail under section 498 Criminal Procedure Code:
After all, judicial discretion has to be exercised, while granting bail and the power
conferred by section 498 of the Code cannot be construed to be purely arbitrary. In this
respect, therefore, section 498 of the Co4 seems to me to be "ancillary or subsidiary" to
sections 416 and 497 of the Code, in the words of the Privy Council.

In other respects, however, section 498 occupies the position of a supplementary


provision in so far as it confers not only concurrent but revisional powers on the High
Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts
and the police and these Courts to exercise the power of anticipatory bail, In suitable
cases.

Coming now to the facts o the instant case, it seems to me that the bail, granted by the
learned Single Judge to the respondent, on submission of grounds almost identical to
those which were mentioned in his previous application and which was rejected by
another Single Judge, was not justified. No reasons were mentioned by the learned Single
Judge for the grant of bail in a case of murder in which the commitment order had
already been passed, though subsection (3) of section 497 prescribes that an officer or a
Court, releasing any person on bail under subsection (1) or subsection (2) of that section,
shall record, in writing, his or its reasons for so doing. Of course, the mere existence of
an order of commitment for trial need not be equated with a finding that "there appear
reasonable grounds for believing that the respondent was guilty of an offence, punishable
with death or transportation for life". Only a prima facie case must be deemed to exist
against him on the basis of the order of commitment. There were no circumstances,
brought out in the respondent's favour, which could justify leniency, on the ground of age,
or sex or health, within the meaning of the proviso to subsection (1) of section 497. The
case also does not fall within the exceptions visualised in subsections (2) and (4) of
section 497. There were affidavits, filed in support of the petition for cancellation of bail
in the High Court, alleging that the respondent was attempting to tamper with the
witnesses for the prosecution. This, was denied in a counter-affidavit. Considering,
however, that there had been an order of commitment passed, that no fresh grounds had
been urged for bail, before the second learned Single Judge, over and above those
considered by the first Judge and that no exceptional circumstances existed, justifying the
grant of bail, I consider that the exercise of discretion by the second learned Judge, in
allowing bail, was, open to exception, on the legal plane.

I would, therefore, allow the appeal, set aside the impugned order, passed by the learned
Single Judge and direct that pending trial, the respondent should be confined to judicial
custody unless, in the meantime, circumstances have come to light, which would require
the question of bail to be reconsidered.

CORNELIUS, C. J.- I agree entirely with the judgment of my learned brother S. A.


Rahman, J. and in particular with his reasons for holding that section 498, Cr. P. C., is not
to be construed to extend the power of the High Court, or a Court of Session, to grant bail
in cases where these Courts would not be competent to grant bail under section 497, Cr.
P. C.

I have to add that I am unable to accept, speaking with due respect, the reason advanced
by my learned brother, Muhammad Yaqub Ali, J., for coming to the contrary conclusion,
viz., that the expression "a Court" in section 497, Cr. P. C., has reference to Courts other
than the High Court or a Court of Session. There are no words in section 497, Cr. P. C., or
elsewhere in the Code which even by implication could have the effect of restricting the
full meaning of the words "a Court" used in that section. I consider that, on recognised
principles of statutory construction, the effect of section 498 can be reconciled with that
of section 497, without doing violence to the meaning of any expression used -in either
section and at the same time, with complete adequacy, on the reasoning set out in the
judgment of my learned brother, S. A. Rahman, J.

HAMOODUR RAHMAN, J.-I have had the advantage of seeing in advance the
judgment proposed to be delivered by my learned brother S. A. Rahman, J. I am in
agreement with him that this appeal should be allowed and that the order of a learned
Single Judge of the High Court of West Pakistan, Lahore, granting bail to respondent No.
I on the 18th November 1965, after another learned Judge of the same High Court had
rejected a similar application, should be set aside. The ground upon which this conclusion
`has been based is also "in accord with the view that I took, while in the High Court, in
the case of Harsha Nath Pal v. State (P L D 1959 Dacca 113). But since this appeal raises
an important question of law as to the true nature and scope of section 498 of the
Criminal Procedure Code, I would like to express my own views on this question.

This section occurs in Chapter XXXIX of the Code of Criminal Procedure which deals
with bails and reads as follows:-

"498. The amount of every bond executed under this Chapter shall be fixed with
due regard to the circumstances of the case and shall not be excessive; and the
High Court or Court of Session may, in any case, whether there be an appeal on
conviction or not, direct that any person be admitted to bail, or that the bail
required by a police-officer or Magistrate be reduced."
This Chapter of the Criminal Procedure Code consists of 7 sections, namely, sections 4 to
502. Section 496 deals with bail to persons accused of bailable offences. Section deals
with bail to persons accused of be offences. Then occurs section 498 which is followed
by sections 499, 500, 501 and 502 which deal with bonds and sureties to be furnished by
persons granted bail under this Chapter.

Notwithstanding the sequence in which this section occurs in the Criminal Procedure
Code the wide terms in which it is couched appear to have caused some difficulty in the
determination of its true nature and scope in the various, High Courts in this
sub-continent and until 1945 the view that prevailed in most of the High Courts was to
the effect that this section gives wide and unlimited powers to the High Court and the
Court of Session to grant bail not only to accused persons but also to convicted persons
who had not appealed against their conviction. This jurisdiction was considered to be a
jurisdiction which could be exercised concurrently with the subordinate Courts and not
merely as a revisional jurisdiction. Several of the High Courts also took the view that the
power to grant bail under this section was entirely unfettered by any conditions and the
limitations set out in sections 496 and 497 of the Code had no manner of application. The
Calcutta and the Bombay High Courts, however, took a somewhat different view. Though
they conceded that this jurisdiction was unfettered and uncontrolled by the two previous
sections they felt that the High Court and the Sessions Court in exercising their discretion
under section 498 of the Criminal Procedure Code should nevertheless keep in view the
limitations on the powers of other Courts to grant bail imposed by sections 496 and 497
of the Code, as they appeared to be "founded on justice and equity", vide Emperor v.
Sourindra Mohun (I L R 37 Cal. 412 ), Ashraf Ali v. Emperor (I L R 42 Cal. 25) and
Naranji Premji v. Emperor (A I R 1928 Sind 142).

It was in the year 1928 that the Chief Court of Sind also veered round to the Calcutta
view and held in the case of Gul v. Emperor (A I R 1928 Bom. 244) that section 498
should be interpreted as controlled by section 497.

It was in this state of divergence of Judicial opinion that in 1945 this section came up for
consideration before the Judicial Committee of the Privy Council in the case of Lala
Jairam Das v. King Emperor (72 1 A 120) The precise question that fell to be considered
in that case was as to whether the High Courts had power to grant bail to a person after is
conviction had been upheld by the High Court, but special leave had been granted by the
Privy Council to appeal from the judgment of the High Court., On this question also there
appeared to be a divergence of opinion, Some High Courts took the view that they had
inherent power to grant bail if special leave to appeal had been granted by the Privy
Council. Some others took the view that bail could only be granted by the High Court if
the Judicial Committee had said that the application for bail should be dealt with by the
High Court. The Calcutta and Nagpur High Courts, however, took the view that there was
no such inherent power in the High Court after it had disposed of the appeal, as the High
Court was then functus officio, but this jurisdiction could be revived if the Judicial
Committee had granted leave and directed the High Court to deal with the bail matter.

The Judicial Committee, after reviewing the authorities in India, took the view that
"Chapter XXXIX of the Code together with section 426 is and was intended to contain, a
complete and exhaustive statement of the powers of a High Court in India to grant bail,
and excludes the existence of any additional inherent power in a High. Court relating to
the subject of bail." In the course of the opinion delivered by Lord Russell of Killowen on
behalf of the Judicial Committee the noble Lord also observed that "the scheme of
Chapter XXXIX is that sections 496 and 497 provide for the granting of bail to accused
persons before trial and the other sections of the Chapter deal with matters ancillary and
subsidiary to that provision "

Even though this observation was in the nature of an obiter dictum, it was treated as
binding by the High Courts in British India and has since been consistently followed in
the, country as well both by the Federal Court and this Court in the cases of Crown v.
Khushi Muhammad, Gushtasab Khan v. Crown, Khalid Saigol v. The State and Sadiq Ali
v. The State. We are, however, now invited to re-examine this question and it k urged that
the view hithertofore taken in the above decisions is based upon an assumption of the
correctness of the view taken by the Judicial Committee in the case of Lala Jairam Das,
The; correctness of this view is now sought to be challenged and it is contended that since
we are no longer bound by the decisions of the Judicial Committee we should not assume
that the Judicial Committee was always correct.

It is urged that to impose the restrictions read into section 498 by the Judicial Committee
would amount rendering this section altogether redundant, at any rate, so far as the power
granted to the High Court and the Court Session to grant bail was concerned. If, it is said,
it as intended by the Legislature to control the wide discretion manifestly granted to the
High Court and the Court Session under section 498 by the limitations mentioned
sections 496 and 497, then this section was wholly unnecessary for, under its revisional
jurisdiction under section 435; which hits incidentally not been noticed by the Judicial
Committee in the case of Lala Jairam Das the High Court and the Court Session had
ample powers to revise the orders of inferior passed under sections 496 and 497 as also to
enlarge bar; pending the examination of the record. It is further argued that there can be
no justification for limiting the connotation" the words "in any case" and "any person",
used in this section. These are words of the widest connotation and there is no reason as
to why they should not be given their ordinary meaning. The intention of the Legislature,
it is said, should be gathered from the words used.

In support of this contention reliance is also placed on a Full Bench decision of the
Lahore High Court to this case of Hidayat Ullah Khan v. The Crown where without
dissenting from the view expressed by the Judicial Committee it was Observe that the use
of such wide words in section 498 indicate that v was "clearly a section intended to
supplement complete the provisions of sections 497 and 496" and again that the use o
such words justified the belief that "they included clearly power in the High Court to
grant bail to persons to whom the Police and the Courts of first instance are not permitted
by section 497 to grant bail."

The question that was referred to the Full Bench in that case was as to whether the High
Court can grant any relief, and if so what, to a person seeking an order; or bail, in
anticipation of his arrest for an offence? The judgment of the Full Bench was delivered
by Cornelius, J., (as he then was) and the answer that was returned was that "in a proper
case, the High Court has power under section 498, Criminal Procedure Code, to make an
order that a person who is suspected of an offence for which he may be arrested by a
Police Officer or a Court, shall be admitted to bail." This answer was concurred in by
Munir, A. C. J. and Muhammad Sharif, J. But this decision was overruled by the Federal
Court in the case of Crown v. Khushi Muhammad where it was held, relying upon the
observations of the Judicial Committee in Lala Jairam Das's case, that "section 498 does
not in any way enlarge the categories of persons to whom bail can be granted under
Chapter XXXIX".

In the latter case the then learned Chief Justice (Abdur Rashid, C. J.) in the course of his
judgment posed the question that "if a person who appears before the High Court under
section 497 is taken to be in the custody of the Court merely because of his appearance, it
is difficult to imagine what would happen to him if the Court rejects his application for
bail. He appeared in Court as a free man. Is the Court bound to keep him in custody and
send him to Jail simply because it rejects his application? If so, under what provision of
the Code?" In view of this further difficulty the learned Chief Justice felt confirmed in his
view that "a person cannot be admitted to bail against whom a report has been lodged at
the Police Station but who has not been placed in custody, or under any other form of
restraint, or against whom no warrant for arrest has been issued." With this view Akram
and Shahabuddin, JJ., also agreed.

This situation visualised in the question posed by the learned Chief Justice actually arose
in the case of Sadiq Ali v. The State where the Sessions Judge after cancelling the
anticipatory bail granted by him earlier ordered the person concerned to be remanded to
police custody and directed the Court orderly to take charge of him. This Court has now
held, after reviewing the earlier decisions, that "the rule laid down in Khushi
Muhammad's case could be safely extended to a direction for the grant of bail to a person
whose arrest on a criminal charge by the Police, without a warrant, is proved to be
imminent and certain and where the circumstances would justify the grant of bail", but
has at the same time pointed out that the subsequent order of the learned Sessions Judge
by which the ad interim bail was cancelled "did not entail the consequence that he had to
be ordered to be given into Police custody" and indicated that "the proper order to pass in
these circumstances was to cancel the ad interim bail and to leave the appellant to be
dealt with by the Police, as they thought fit."

In another case, namely, Rasool Bakhsh v. The State a learned Single Judge of the High
Court of West Pakistan, Karachi Bench, following the pre-1945 decisions of the Indian
High Courts, held that the High Court's discretion under section 498 was not fettered by
the limitations laid down in section 497 of the Criminal Procedure Code, but in this case
the learned Judge dice not notice either the decision of the Privy Council in the case of
Lala Jairam Das or the decision of the Federal Court in the case of Khushi Muhammad.
The same learned Judge again sitting singly in the case of Sardar Ata Ullah Khan v. The
State, however, maintained his above view even after considering the subsequent
decisions both of this Court, the Federal Court and the Privy Council in the case of Lala
Jairam Das. He distinguished these cases on the ground that in none of them this precise
question had come up for consideration and preferred to follow the view taken in the case
of Hidayat Ullah Khan that this section was intended to supplement and complete the
provisions of sections 497 and 496 and had conferred a larger power to grant bail in
pending cases to the High Court and the Court of Session.

It is no doubt true that the decisions of the Judicial Committee are no longer binding upon
us but they are nevertheless entitled even now to the highest respect and should not be
lightly departed from particularly, where the decision relates to law which is still in force
in the same form. Unless there be cogent and compelling reasons it is, in my view, only
proper that the decisions of the Judicial Committee should be respected as decisions of
the highest Court of the time, particularly, where that view has also received recognition
by the highest Court in the country.

I propose, therefore, now to examine whether any such compelling reasons exist in the
present case. Sections 498, as already stated, is no doubt couched in the widest terms and
ex facie appears to empower the High Court and the Court of Session with the power to
grant bail to "any person" and "in any case whether there be an appeal on conviction or
not." It is contained in the Chapter on bails and immediately succeeds section 497. This
Chapter, it is now universally accepted, deals with the cases of persons arrested or
detained without warrant by a Police Officer or who appear or are brought before a Court
at any stage of any investigation, enquiry or trial. This Chapter does not deal with the
cases of persons tried and convicted or acquitted, for, their cases are specifically provided
for by sections 426 and 427 of the Criminal Procedure Code. To this extent, therefore,
there is no divergence of opinion that section 498 which occurs in Chapter XXXIX does
not deal with the cases of persons dealt with in sections 426 and 427 of the Criminal
Procedure Code. The earlier view that even the cases of convicted persons could be
brought within the ambit of section 498 is no longer tenable. This view appears to receive
support from the fact that in the corresponding section (section 390) of the Criminal
Procedure Code of 1872 the words used were "the accused person". The substitution of
the words "any person" in the place of "the accused person" led the High Courts in India
in the earlier cases to hold that the alteration had the effect of enlarging the powers of the
High Courts and the Courts of Session under section 498 as regards the category of
persons to whom bail can be granted, but this could not be correct, for where a specific
provision has been made in the Code for persons tried and convicted that provision
should be applicable. The powers of the Hi0h Courts and Courts of Sessions, so far as the
granting of bail is concerned, are derivable from the provisions of the Code of Criminal
Procedure alone and there can be no scope for invoking any inherent jurisdiction in cases
for which specific provision has been made in the Code itself. In this respect, at any rate,
section 498 also deals with persons in respect of whom orders can be made under
sections 496 and 497, i.e., those who are arrested or detained without warrant by a Police
Officer or appear or are brought before a Court and the use of the words "any person"
does not enlarge the category of persons to whom bail can be granted under section 498.
In this respect section 498, whether it is "ancillary" or "supplementary", also appears to
be not altogether unconnected with the other provisions contained in Chapter XXXIX.

Apart from this, it appears to me that looking at section 498 as a whole it cannot be said
that it is an entirely independent section. It provides for three things; namely, (1) that the
amount of the bond executed under that Chapter shall not be excessive and shall be fixed
with due regard to that circumstances of the case, (2) that the High Court or the Court of
Session may in any case, whether there be an appeal on conviction or not, direct that any
person be admitted to bail, and (3) that the High Court and the Court of Session may
reduce the amount of bail required by a Police Officer or Magistrate.

So far as the first and last are concerned, it is manifest that they relate to the bonds to be
executed by persons granted bail under sections 496 and 497. The first is clearly a
directive also to the "officer" and "Court" referred to in sections 496 and 497 and the last
item gives the High Court and the Court of Session powers to revise the orders of the
"officer" and "Court" mentioned in sections 496 and 497 in cases in which they appear to
have disregarded the first directive. In respect of these matters, therefore, section 498 is
without any doubt "ancillary or subsidiary" to the two earlier sections. The question now
is as to whether the power given under (2) above is nevertheless unrelated to the
provisions of sections 496 and 497 or whether this power is also controlled by the
provisions of the earlier sections of that Chapter.

As earlier indicated the view that found favour in almost all the High Courts in the Indian
Sub-continent was that this power of granting bail given to the High Courts and the
Courts of Session under section 498 was a wider power than that conferred on officers in
charge of Police Stations and inferior Courts under sections 496 and 497, but the High
Courts of Calcutta and Bombay accepted this view with the rider that in exercising this
discretion the High Court and Court of Session should be guided on general principles
relating to the exercise of judicial discretion by the policy of the Legislature, if any,
indicated in the statute itself and the limitations imposed thereby on the powers of other
Courts. A judicial discretion, it was felt, ought not to be exercised in a manner which is
contrary to the policy of the law. This is also the view which has found favour with my
learned brother S. A. Rahman, J. and led him to the conclusion that "in this respect,
therefore, section 498 of the Code seems to be `ancillary or subsidiary' to sections 496
and 497 of the Code, in the words of the Privy Council." The main consideration which
has impelled him to this conclusion is that otherwise it would lead to "anomalous results"
in so far as the High Court would be bound by the provisions of section 497 in cases
which come up for trial before it under its original criminal jurisdiction under section
194, Cr. P. C., or in cases transferred to itself under section 526. Such anomalous
situations would, I venture to think, also arise in cases in which the High Court is called
upon to exercise its powers of granting bail under sections 426, 427 and 435 of the Code.
Should in such cases too the High Court's powers be fettered by the considerations
mentioned in sections 496 and 497? This Court has already held in Khalid Saigol's case
that they are not so fettered and I see no reason to depart from that view. With the, utmost
respect, therefore, I. am unable to agree that this can be a valid consideration for
restricting the powers of granting bail conferred upon the High Court and the Court of
Session by section 498. If my learned brother intends by this to lay down as a general
principle that in no case can the High Court and the Sessions Court depart from this rule
then 1 think that he is placing an undue restriction' on the powers of the High Court and
the Sessions Court which is not warranted by the unusually wide words used in this
section.

In using the words "ancillary and subsidiary", I also venture to think, that the Judicial
Committee did not intend to lay it down as a general proposition that in all respects the
provisions of section 498 were controlled by sections 496 and 497. The Judicial
Committee was concerned only with the question as to whether section 498 could have
any reference to convicted persons. Other questions were not canvassed and it appears
that the Judicial Committee did not consider in all its aspects the scope of section 498. It
was not noticed that there could be cases in which this power could be utilised by the
High Court and the Court of Session, e.g., where the inferior Courts or Polio; Officers
could not do so under the proviso to section 496. Could it have been in the contemplation
of the Judicial Committee that even under section 498 the High Court or the Court of
Session would not be empowered to grant bail in such cases? Again, can the Judicial
Committee be considered to have laid down that the Sessions Judge should have no
power under section 498 to release a person on bail pending the hearing of a reference
under section 123 in respect of a person against whom an order has been made under
section 118 of the Code? These were situations which were not in the contemplation of
the Judicial Committee and in the circumstances I would with respect say that their
Lordships' observations are limited to the question that was before them, namely, as to
whether section 498 had any reference to the case of a convicted person whose conviction
had been upheld by the High Court.

Taking in to account the context in which section 498 appears and the wide words
deliberately used it in respect of the power of granting bail it seems to me that it is in the
nature of a residuary and supplementary provision giving to superior criminal Courts,
namely the high court and the courts to session to whom bail cannot be granted under
exercised 496,and 497. In what manner this power should be exercise or by what
principles these superior Courts should be guided in exercising their discretion is an
altogether different question and should not, in my view, be taken into account for
determining the true scope of this section. In my view, there an be no doubt that section
498 -gives extend and wider powers to the High Court and the Court Session but this
judicial manner taking in to account the limitation placed by other provinces of the code
upon subordinate authorities and that a rule founded on justice and equity will not be
exceptional circumstances But this is a self imposed restriction and no a restriction
imposed by anything contained in the section. Normally this general salutary principle
will no doubt be kept in view and will not be lightly departed from but this should not, in
my view, be held to debar the High Court an the Court of Session from deviating from it
in exceptional case or as controlling the wide words of section 498 as a matter of
construction of the section. This principle is invoked in aid more a., a precaution against
the is criminal a grant of bail and not as a statutory clog upon the powers of these courts

With these observations I respectfully concur with the other conclusions reached by my
learned brother.

MUHAMMAD YAQUB ALI, J.-I have had the advantage of seeing the judgment of my
learned brother S. A. Rahman, J. and respectfully agree, with him that the appeal be
allowed but express my inability to concur with the view that the powers conferred on a
High court and court of session by sections 498, Cr P C to admit any person to bail are
subject to the limitations imposed by section 497, and that section 498 is in this respect
subsidiary and ancillary to section 497 ions imposed by sections .
My own view is that the Code has, in conferring powers on Courts to grant bail, observed
distinction between High Court or Court of Session and the Courts subordinate to them.
The limitation in section 497, namely, that a person shall not be released on bail if there
appear reasonable grounds for believing that he has been guilty of an offence punishable
with death or transportation is applicable to subordinate Courts for the reason that
generally offences punishable with transportation for life and death are triable by a Court
of Sessions or the High Court and these being superior Courts their powers are larger than
the power entrusted to Courts at the lower tier.

There is in my opinion also no warrant to import into section 498 the ingredients of
section 497 section 496, and 497 speak of bail anti bonds, The part of section 498
emphasise, that Courts and police officers shall fix their amount with due regard to the
circumstances of the case and shall not be excessive and the concluding part empowers
the High Court or the Court of Session to reduce the bail required by a police officer or
Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and 497.
The remaining part of the section which confers on the High court or court of Session the
power to admit any person to bail in any case and weather there be an appeal on
conviction or not is however, an independent provision. The plain meaning of the words
employed by the Legislature in section 498 cannot be depart from on any rule of
construction The words "in any case" do away with. The distinction made section 497
between-cases punishable with transportation for life and death and cases involving lesser
penalty. Similarly the use of the words any person confers jurisdiction in respect of
persons who may not be under arrest and does not appear in obedience to a process issued
by the Court or are not brought before the Court as envisaged in section 497. It is the
effect of these words which, in my opinion, justify grant of bail before arrest and not the
subtle difference between the words "release on bail" and "admit to bail" used in sections
497 and 498 respectively.

Lastly, as regards he anomaly that the High court and Court of Session while trying cases
will be subject to limits imposed by section 497, I respectfully venture to say that the
High court and court of Sessions are not included in the term “Court” used in section 497.
There will thus be no anomaly for in either case their powers in the matter of rant of bail
will be the same. This however does not confer arbitrary power to grant bail on the High
Court and the Court of Session. The policy of law is laid down in section 497 and the
Courts will act in aid of that policy, but there will always be case exceptional nature in
the limitation imposed by section 497 section 498 is to be subsidiary and ancillary to
section 497 then the power to grant bail in such cases will be taken away.

A. H.
2008 M L D 1030

[Lahore]

B e f o r e Kazim A li Malik , J

HAJI AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 150-CB of 2007, decided on 23rd April, 2008.

(a) Criminal Procedure Code (V of 1898)---


----Ss. 497 & 498---Grant of pre-arrest and after arrest bail---Considerations for---
Pre-arrest bail was an extraordinary relief, whereas the post-arrest bail was an
ordinary relief---Considerations for pre-arrest bail and after arrest bail were altogether
different---Any good ground for post-arrest bail could be no ground for pre-arrest---
While seeking pre-arrest bail it was duty of accused to establish and prove mala fide
on the part of the Investigating Agency or the complainant---Trial Court was required
to examine the plea of mala fide put forward by accused after having made tentative
assessment of the material laid down before him and that exercise should not have
been postponed till the inception of trial and recording of evidence---Ground that
accused was no more required for investigation purpose, was a good ground for post-
arrest bail only.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail,


cancellation of---Offence with which accused stood charged though did not fall within
the prohibitory clause of S.497 Cr.P.C., but that was no ground for anticipatory bail---
Accused, in bailable offences, could claim bail as a matter of right, whereas in non-
bailable offences the bail was a concession/grace/favour by the court in the light of
legal principle ---Offence not falling under the prohibitory clause of S.497 Cr.P.C.,
did not provide a basis to allow extraordinary relief of anticipatory bail to accused---
No hard and fast rule could be framed in that regard and it depended upon the facts of
each and every case---No ground for extraordinary relief of anticipatory bail, in the
present case, was available to accused and the Trial Court had treated the grounds for
post-arrest bail as grounds for pre-arrest bail against recognized and established
principles of law---Accused though was present in the Court during the course of
argument, but he slipped away at the time of pronouncement of order---Such conduct,
rather misconduct on the part of accused, had made himself disentitled to
discretionary relief of bail---Bail granting order of the Trial Court, was set aside, in
circumstances.
Talib Hussain v. State 2007 PCr.LJ 1064; Askari Leasing Limited v. Rana Muhammad
Asif and another 2005 PCr.LJ 950; Liaqat Hussain v. State 2006 MLD 166; Muzaffar
Iqbal v. Muhammad Imran Aziz and others 200,4 SCMR 231; Suba Khan v.
Muhammad Ajmal and 2 others 2006 SCMR 66; Talib Hussain v. The State 2007
PCr.LJ 1064; Major Anwar ul Haq v. The State PLD 2005 Lahore 607; Muhammad
Ayub v. Rana Abdul Rehman and another 2006 YLR 1852; Qasim Khan v. Sharafat
Khan and another 2003 YLR 2910 and Tariq Bashir and 5 others v. The State PLD
1996 SC 34 ref.

Khawaja Qaisar Butt for Petitioner.

Mian Bashir Ahmad Bhatti, DPG.

Mahboob Ahmad, S.H.O. Police Station, City Alipur.

ORDER

KAZIM ALI MALIK, J.---Haji Ahmad, petitioner/complainant got registered a


case F.I.R. No. 227, dated 2-7-2008 under section 489-F, P.P.C. at Police Station
City Alipur, District Muzaffar Garh with an allegation that Raheem Bakhsh,
accused, had been receiving different amounts from the complainant's son Abdul
Razzaq residing abroad through electronic transfer on his behalf; that Raheem
Bakhsh withheld and misappropriated the money which he had received through
such electronic transfer, upon which the complainant made an application and
sensing some action Raheem Bakhsh issued three cheques of different amounts in
favour of the complainant, which on their presentation before National Bank of
Pakistan, Alipur Branch had been dishonoured.

2. Apprehending arrest in the above said case Raheem Bakhsh, accused, made an
application for pre-arrest bail before the learned Additional Sessions Judge, Alipur,
which was allowed vide order, dated 27-7-2007. The complainant has sought
cancellation of pre-arrest bail of Raheem Bakhsh, accused, through this application
under section 497(5), Cr.P.C.

3. The following reasons weighed with the learned Additional Sessions Judge while
allowing anticipatory bail to the accused:

(i) According to the medical certificate the petitioner was heart patient and an
old man.

(ii) Mala fide behind issuance of disputed cheques would be determined after
recording of evidence.

(iii) The offence does not fall within the prohibitory clause of section 497,
Cr.P.C.
(iv) The person of accused was not required for recovery of cheques as the
same were already with the complainant.

4. To start with I must say that pre-arrest bail is an extraordinary relief whereas the
post-arrest bail is an ordinary relief. Considerations for pre-arrest bail and after
arrest bail are altogether different. A good ground for post-arrest bail may be no
ground for pre-arrest bail. It appears that the above said legal principles escaped
notice of the learned Additional Sessions Judge, while granting extraordinary relief
of anticipatory bail to Raheem Bakhsh, respondent/accused. During the course of
arguments Raheem Bakhsh appeared in person. Apparently, he is neither extremely
old nor in a bad state of health.

5. There is no dispute as to this that the respondent/accused issued cheques in


dispute in favour of the complainant, which on their presentation before the
concerned Branch of National Bank of Pakistan had been dishonoured. It was in the
knowledge of the respondent/accused that he had no money in the Bank account and
despite this he issued cheques in favour of the complainant. To my mind this was an
evidence against the respondent/accused of his dishonest intention. While seeking
pre-arrest bail it was duty of the respondent/accused to establish and prove mala fide
on the part of the Investigating Agency or the complainant. The learned Additional
Sessions Judge, was required to examine the plea of mala fide put forward by the
respondent/accused after having made tentative assessment of the material laid
before him and this exercise should not have been postponed till the inception of
trial and recording of evidence.

6. It is true that the offence with which the respondent/accused stands charged does
not fall within the prohibitory clause of section 497, Cr.P.C. but it was no ground for
anticipatory bail. In bailable offences the accused can claim bail as a matter of right
whereas in non-bailable offences the bail is a concession/grace/favour by the Court
in the light of legal principles. The offence not falling under the prohibitory clause
of section 497, Cr.P.C., did not provide a basis to allow extraordinary relief of
anticipatory bail to the respondent/accused.

7. Another reason for grant of pre-arrest bail was that the accused was no more
required for investigation purpose. Without fear of contradiction I would say that it
was a good ground for post-arrest bail only.

8. The learned Additional Session Judge allowed anticipatory bail placing reliance
on the case of Talib Hussain v. State (2007 PCr.LJ Lahore 1064). Here I would say
that no hard and fast rule can be framed in this regard and it depends upon the facts
of each and every case. In case Askari Leasing Limited v. Rana Muhammad Asif and
another (2005 PCr.LJ 950) pre-arrest bail allowed to the accused had been recalled
by this Court. In another case Liaqat Hussain v. State (2006 MLD Lahore 166) pre-
arrest bail to the accused of an offence under section 489-F had been declined by
this Court.
9. The learned counsel for respondent/accused has placed reliance on Muzaffar Iqbal
v. Muhammad Imran Aziz and others (2004 SCMR 231), Suba Khan v. Muhammad
Ajmal and 2 others (2006 SCMR 66), Talib Hussain v. The State (2007 PCr.LJ
1064), Major Anwar ul Haq v. The State (PLD 2005 Lahore 607), Muhammad Ayub
v. Rana Abdul Rehman and another (2006 YLR 1852), Qasim Khan v. Sharafat Khan
and another (2003 YLR 2910) and Tariq Bashir and 5 others v. The State (PLD 1996
Supreme Court 34) and has contended that strong and exceptional grounds are
required for cancellation of bail. With extreme respect at my command for the case-
law relied upon by the learned counsel, I would say that the facts of precedent cases
are altogether different from that of the case in hand. I am of the view that no ground
for extraordinary relief of anticipatory bail was available to the respondent/accused
and the learned Additional Sessions Judge treated the grounds for post-arrest bail as
grounds for pre-arrest bail against recognized and established principles of law.

10. Raheem Bakhsh, respondent accused, named present during the course of
arguments, but he slipped away at the time of pronouncement of order. This conduct
rather misconduct on the part of the respondent/ accused has made himself disentitled
to discretionary relief of bail.

11. For what has been stated above I allow this application and set aside the bail
granting order of the learned Additional Sessions Judge.

H.B.T./H-7/L Application
allowed.
2008 Y L R 1868

[Lahore]

Before M. Bilal Khan, J

JAMIL AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2804/B of 2004, decided on 24th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, refusal
of---Prima facie ample incriminatory material was available against accused persons
which prima facie connected them with the commission of offence---No occasion
existed for the complainant and his brother to have executed general Power-of-
Attorney in favour of accused persons when they themselves were in a position to
look after their property and in their absence their grown-up children were there---On
a court question as to what was the family dispute, which had arisen between the
brothers, which according to accused persons had prompted the complainant party' to
get the case registered against them, accused as well as their counsel had failed to
point out any such feud or discord---Counsel for accused persons could not point out
any malice on the part of the complainant or the police to have falsely implicated
accused persons---No special feature of the case was identifiable entitling accused
persons to grant of extraordinary concession of pre-arrest bail---Ad interim pre-arrest
bail allowed to accused persons, was recalled.

Ch. Basharat Karim v. Muhammad Ishtiaq Chandoor and another 2007 SCMR 1546;
Rizwan Iqbal v. The State 2007 SCMR 1392; Muhammad Arshad Kausari v. The State
2007 YLR 1282; Muhammad Amjad v. The State 2007 P.Cr.LJ 1997; Tahir Mahmud
and another v. State 2007 PCr.LJ 112 and Moulana Abdul Shakoor Khairpuri v. The
State 2008 MLD 472 ref.

Imran Raza Chadhar for Petitioners.

Ihsaan Ali Shaikh for the Complainant.

Muhammad Iqbal Chaudhry, D.P.-G. for the State.

Muhammad Yousaf, A.S.-I. with record.


ORDER

M. BILAL KHAN, J.---Jamil Ahmad and Khalil Ahmad sons of Muhammad Bashir,
and Muhammad Akbar son of Fateh Muhammad petitioners seek pre-arrest bail in
case F.I.R. No.205/2008 dated 22-2-2008, registered with Police Station Lower Mall
Lahore, for offences under sections 420, 468 and 471, P.P.C.

2. The case had been registered at the instance of Nazir Ahmed son of the Fateh
Muhammad, who happens to be the real brother of Muhammad Akbar petitioner and a
paternal uncle of Jamil Ahmed and Khalil Ahmed petitioners. The prosecution case as
contained in the F.I.R. was that the complainant and his brother Muhammad Munir's
agricultural property the details whereof find mention in the F.I.R. had fraudulently
been got alienated by the petitioners after manufacturing a General Power-of-Attorney
by putting spurious thumb impressions and signatures on the same.

3. The petitioners application for pre-arrest bail had been turned down by the learned
Additional Sessions Judge Lahore, on 31-3-2008. Hence the instant petition.

4. It was argued by the learned counsel for the petitioner that the petitioners were
innocent and had committed no offence; that the petitioners happened to be closely
related to the complainant and that the F.I.R. had been lodged with a view to settling
certain family disputes regarding the property and other matters between respective
families of the complainant and the accused; that there is delay of twenty-two months
in lodging the F.I.R. inasmuch as the General Power-of Attorney was got registered in
the year 2006, whereas F.I.R. was recorded on 22-2-2008; that a Civil suit has been
filed by Jamil Ahmed, petitioner against the complainant and others, which is pending
before a civil Court at Lahore during the pendency of which no action on criminal
side could be taken; that the F.I.R. has been recorded against the petitioners only to
harass and blackmail them.

5. On the other hand Mr. Ihsaan Ali Sheikh, Advocate for the complainant strenuously
opposed pre-arrest bail of the petitioners and submitted that the complainant and his
brother have been deprived of their valuable property and that the fraud committed by
the petitioners is patent on the record; that report of the Finger Print Bureau clearly
establishes that fraud had been committed as signatures and thumb impressions of
Nazir Ahmed, complainant and his brother Muhammad Munir, do not tally with the
thumb impressions and signatures existing on the General Power-of-Attorney.

6. After hearing the learned counsel for the parties and examining the record it has
been observed that prima facie there is ample incriminatory material available against
the petitioners which prima facie connects them with the commission of offence.
Nazir Ahmed complainant and his brother Muhammad Munir were present in the
Court with their grown up sons. Prima facie there was no occasion for the
complainant and' his brother to have executed General Power-of-Attorney in favour of
the petitioners when they were themselves in a position to look after their property
and in their absence their grown up children were there. On a Court question as to
what was the family dispute, which had arisen between the brothers, inter se which
according to the petitioners had prompted the complainant party to get the case
registered against them the petitioners as well as their learned counsel miserably
failed to point out any such feud or discord. The precedents cited by the learned
counsel for the petitioner viz Ch. Basharat Karim v. Muhammad Ishtiaq Chandoor and
another (2007 SCMR 1546), Rizwan Iqbal v. The State (2007 SCMR 1392),
Muhammad Arshad Kausari v. The State (2007 YLR 1282), Muhammad Amjad v. The
State (2007 P.Cr.LJ 1977), Tahir Mahmud and another v. State 2007 PCr.LJ 112 and
Moulana Abdul Shakoor Khairpuri v. The State (2008 MLD 472) proceed on
distinguishable facts and do not advance the case of the petitioners for grant of pre-
arrest bail. The learned counsel for the petitioners has remained unable to point out
any malice on the part of the complainant or the police to have falsely implicated the
petitioners. No special feature of the case is identifiable entitling the petitioners to the
grant of extraordinary concession of pre-arrest bail. There is no merit in his petition,
which is accordingly dismissed and ad interim pre-arrest bail allowed to the
petitioners vide order dated 4-4-2008, is hereby recalled.

H.B.T./J-25/L Bail refused.


2008 Y L R 1852

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD ZAFAR ULLAH KHAN---Petitioner

Versus

KAMRAN KHAN and 2 others---Respondents

Criminal Miscellaneous No.2070-BC of 2008, decided on 30th April, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 324 & 337-F (v) (vi)---Pre-
arrest bail, cancellation of---Pre-arrest bail was an extraordinary remedy granted to
innocent persons to save them from humiliation and victimization at the hands of
police---No mala fide had been alleged against the police or complainant to falsely
implicate the accused----One of the accused had caused firearm injury hitting right
upper arm of the injured prosecution witness which was found communated fracture
falling under S.337-F(vi), P. P. C., whereas injury caused by the other accused was yet
another fracture of upper part of right thigh falling under S.337-F(v), P.P.C.---
Impugned order granting bail to both the accused was not based on any cogent
reasoning, rather it was in violation of law declared by the apex Court---Mere opinion
of the Investigating Officer that one of the accused was found empty handed, in
presence of statement of injured prosecution witness, was no ground for extraordinary
concession of pre-arrest bail---Recoveries were yet to be effected from accused
persons and they were found guilty during the investigation---Offence under S.324,
P.P.C. was also attracted which fell within prohibition contained under S.497, Cr. P.
C.---Order granting pre-arrest bail to accused persons passed by the Trial Court was
recalled in circumstances.

Malik Zafar Abbas, v. Agha Raza Abbas Qazilbash and another PLD 2002 SC 529;
Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Zamir ul Hassan
v. The State PLD 1982 SC 192 ref.

Zia Ullah Khan Niazi for Petitioner.

Khan Ikram Ullah Khan Niazi for Respondents Nos.1 and 2.

Ch. Muhammad Zafar Khan, D.P.-G. for the State/Respondent No.3.

ORDER
MUHAMMAD AHSAN BHOON, J.---The petitioner, through this petition, seeks
cancellation of pre-arrest bail granted to respondents Nos.1 and 2 (Kamran Khan
and Ikram Ullah Khan) by the learned Additional Sessions Judge, Jaranwala District
Faisalabad vide his order dated 29-2-2008 in case F.I.R. No.768 dated 16-11-2007,
registered under sections 324/ 337-L (ii)/148/149, P.P.C. with Police Station,
Lundianwala District Faisalabad, on the grounds that pre-arrest bail is extraordinary
remedy which can be granted unless mala fide. or ulterior motive of complainant is
established; that both respondents Nos.1 and 2 were duly nominated in the F.I.R.
and were attributed specific role of causing fire-arm injuries on the person of Latif
Ullah injured P.W. and in result of injuries caused by respondent No.1 fracture was
found on the right arm of injured Latif Ullah causing injury Ghairjaifa Munaqqillah
falling under section, 337-F(vi) for which punishment is provided seven years,
whereas injury caused by respondent No.2 hitting the injured on his upper part of
right thigh and same is Ghairjaifa Hashimah which falls under section 337-F (v),
P.P.C; that cross version lodged by the respondents was found false during the
investigation and that the respondents have committed offence under section 337-
F(v) & (vi), P.P.C. and their persons were requirement for the purpose of
investigation. Relies on Malik Zafar Abbas, v. Agha Raza Abbas Qazilbash and
another (PLD 2002 SC 29).

2. On the other hand, learned counsel for respondents Nos.1 and 2 opposed the
cancellation of bail and argued that the respondent were rightly given concession of
pre-arrest bail by the learned Additional Sessions Judge; that no case was made out
against them. The learned D.P.G. supported the version of the petitioner and argued
that extraordinary relief is granted to an innocent person to save from harassment
and victimization at the hands of the police and respondents Nos.1 and 2 were not
entitled to the concession of pre-arrest bail.

3. Heard. Record perused.

4. Respondents are charged under sections 324/337-F (v, vi), P.P.C. Pre-arrest bail is
an extraordinary remedy granted to innocent persons to save them from humiliation
and victimization at the hands of police. No mala fide has been alleged against the
police or complainant to falsely implicate the respondents. Reference can be had to
Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82); Zamir ul Hassan v.
The State (PLD 1982 SC 192) and Malik Zafar Abbas v. Agha Ram Abbas Qazilbash
and another (PLD 2002 SC 529).

5. Respondent No.1 has caused fire-arm injury hitting right upper arm of the injury
P.W. which was found communated fracture falling under section 337-F (vi), P.P.C.
whereas injury caused by respondent No.2 was yet another fracture of upper part of
right thigh falling under section 337-F (v), P.P.C. The impugned order granting bail to
respondent Nos.1 and 2 is not based on any cogent reasoning rather it is in violation
of law declared by the Honourable apex Court in the cases mentioned above. Mere
opinion of the Investigation Officer that Kamran Khan respondent No.1 was found
empty handed, in presence of statement of injured P.W, was no ground for
extraordinary concession of pre-arrest bail. Recoveries are yet to be effected from the
respondents and they were found guilty during the investigating offence under section
324, P.P.C. is also attracted which falls within prohibition contained under section
497, Cr.P.C.

6. In view of what has been discussed above, this petition is allowed, and order passed
by the learned Additional Sessions Judge, for grant of pre-arrest bail to respondents
Nos.1 and 2 being against the principles settled by the Honourable Supreme Court, is
hereby re-called. However, it is observed that the learned trial Court shall not be
influenced in any manner of the observation made above and will be free to decide
post arrest bail application of respondents Nos.1 and 2, on its own merits.

H.B.T./M-126/L Bail granted.


2008 Y L R 1686

[Lahore]

Before Mazhar Hussain Minhas, J

Hafiz NAUMAN---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2190-B of 2007, decided on 25th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), 5.498-F---Pre-arrest bail, refusal of---Accused


had admitted that cheques in question were issued to the complainant and same were
dishonoured for lack of sufficient amount in account of accused---Certified copy of bail
order passed in another similar case filed against accused by the son of complainant, had
shown that accused was allowed pre-arrest bail on the statement of son of complainant
that compromise had been effected and he had no objection to the grant of bail to him---
Nothing was available in the statement of son of complainant that all the business
disputes between the parties had been resolved---No doubt in a case not falling within the
prohibitory clause of S. 497, Cr. P. C. grant of bail was a rule and refusal an exception,
but case of accused was of an exceptional nature and was not covered by that principle---
Accused owed huge amount to the complainant and he did not intend to pay back the
same despite an offer made by counsel for complainant before the court that he could be
allowed to pay the amount in instalments---Besides, accused was involved in some other
cases of similar nature which spoke volumes about his conduct---Accused, held was not
entitled to the concession of bail.

Haji Fida Yar Sahoo for Petitioner.

Altaf Ibrahim Qureshi and Muhammad Ali Ahmed Buzdar for the Complainant.

Ch. Sarfraz Ahmed Zia, D.P.-G., Punjab for the State with Muhammad Afzal, A.S.I.

ORDER

MAZHAR HUSSAIN MINHAS, J.---Hafiz Nauman-petitioner seeks pre-arrest bail in


case No.22 dated 27-4-2007 under section 489-F, P.P.C. registered in police station Fateh
Sher, District Sahiwal.

2. As alleged in the F.I.R. the petitioner is having business of computers, etc., and his
containers were struck up for clearance of dues. He requested the complainant to give
him an amount of Rs.15,00,000 for getting his containers released, upon which latter paid
an amount of Rs.8,00,000. The petitioner in lieu therefore issued cheques No.4278964
and 4278966 valuing Rs.4,00,000 each to be encashed on 10-1-2006 and 16-1-2006
respectively from his account in Askari Bank High Street, Sahiwal. The complainant
presented the cheques to the concerned bank for encashment on the relevant dates, but
same could not be encashed for want of sufficient amount. Thereupon, the petitioner
asked the complainant to wait for some time and that he would deposit the amount in his
account. On 7-4-2006 the complainant deposited the cheques in National Bank Limited,
Tech Branch, Lahore, for getting the amount transferred from Askari Bank Sahiwal to his
own account but the cheques were dishonoured for lack of sufficient amount. Thereupon,
present case was registered.

3. Learned counsel for the petitioner admits the issuance of cheques to the complainant,
however, he contends that the parties were having a joint business of import/export in
which the petitioner suffered loss, therefore, he could not arrange the amount for
encashment of cheques to the complainant. According to learned counsel, another case
F.I.R. No.110, dated 1-2-2006 under section 489-F, P.P.C. was got registered by Aamir
Mumtaz Qureshi son of the complainant at Police Station Defence Area, Lahore,
compromise was effected and all the matters were resolved between the parties. On the
statement of Aamir Mumtaz Qureshi recorded before the learned Additional Sessions
Judge, Lahore on 29-4-2006 the petitioner was allowed pre-arrest bail in the said case.
But despite the settlement, the complainant had got registered the 'instant case against the
petitioner with mala fide using the cheques in question lying with him. Learned counsel
further contends that the petitioner is behind the bars for about one year; that offence does
not fall within the prohibitory clause of section 497-Cr.P.C. and that no useful purpose
would be served by his father detention.

4. Learned Deputy Prosecutor General for the State as well as learned counsel for the
complainant have vigorously opposed the bail petition and have contended that the
petitioner filed an application under sections 22-A & B, Cr.P.C. for registration of case
against the complainant his son Aamir Mumtaz and one Khalil Ahmed for having stolen
the cheques from his cheque book, but that application has been dismissed. They have
further contended that he is a habitual offender and some other cases of similar nature are
registered against him in different police stations. Photostat copy of case F.I.R. No.130,
dated 7-4-2006 under section 489-F, P.P.C. registered in Police Station Fateh Sher,
District Sahiwal and copy of F.I.R. No. 707, dated 21-11-2005 under sections 406/506,
P.P.C. registered in Police Station Garden Town Lahore have been submitted in support of
their contention.

5. I have heard the learned counsel for the parties and perused the record. As mentioned
above, it has been admitted by the petitioner that cheques in question were issued to the
complainant and same were dishonoured for lack of sufficient amount in his account.
Certified copy of bail order dated 29-4-2006 passed by learned Additional Sessions
Judge, Lahore in case F.I.R. No.110/2006 Police Station Defence Area, Lahore, is placed
on the file, perusal of which shows that the petitioner was allowed pre-arrest bail on the
statement of Aamir Mumtaz Qureshi son of the complainant that compromise had been
effected and he had no objection to the grant of bail to him. There is nothing in the
statement of Aamir Mumtaz Qureshi that all the business disputes between the parties
have been resolved. No doubt it has been settled by now by the superior Courts that in a
case not falling within the prohibitory clause of section 497, Cr.P.C, grant of bail is rule
and refusal an exception, but case of the petitioner is of an exceptional nature and is not
covered by this principle of law. He owes huge amount of Rs.8,00,000 to the complainant
and does not intend to pay back the same despite an offer made by learned counsel for the
complainant before this Court that he may be allowed to pay the amount in instalments.
Besides the above, he is involved in some other cases of similar nature which speaks
about his conduct. In view of the above, he is not entitled to the concession of bail.
Hence, the bail petition is dismissed.

H.B.T./N-13/L Bail refused.


2008 Y L R 1220

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD EJAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.1653-B, 1767-B and 1817-B of 2004, decided on 24th


March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406, 420, 468, 471 & 477-A---Pre-arrest bail,
grant of---Allegations made in the F.I.R. were general and collective---Complainant had
not levelled any specific allegation against any particular accused---Report of Forensic
Science Laboratory showing some mechanical erasure in the relevant document could not
fix its responsibility on any accused---Vendors of the property in issue had not challenged
before any forum that the words or the lines in the relevant deed purported to have been
added subsequently, were not a part of the original deed---Tehsildar concerned had found
the accused being bona fide purchasers of the relevant property through registered sale-
deed---Provincial Mohtasib had even refused to accept the complainant's allegations
against the accused as correct--Collector as well as the Sub-Registrar had also concluded
in the inquiry report in favour of accused and against the complainant party---Deed
writers and the Local Commissioners had already sworn affidavits confirming that the
alleged interpolations in the relevant deed were part of the original deed itself and the
same had not been incorporated in the deed at a subsequent stage---Genuine and bona
fide civil dispute had been transformed by the complainant party into a criminal case
which smacks of mala fides on its part---Accused had joined the investigation and
nothing was to be recovered from them---Challan had already' been submitted in the
court---Liberty of a citizen was too precious and sacrosanct to be allowed to be sacrificed
at the altar of a mere formality---Concession of bail ought not to be with-held by way of
premature punishment---Ad interim pre-arrest bail allowed to accused was confirmed in
circumstances.

Seerat Hussain Naqvi for Petitioner with Petitioner in person.

Ishfaque Ahmad Chaudhry for the State with Zaheer Ahmed, S-I. with record.

Shaukat Rafique Bajwa and Talat Farooq Sheikh for the Complainant.

ORDER
ASIF SAEED KHAN KHOSA, J.--Through this consolidated order I propose to decide
Criminal Miscellaneous No.1653-B of 2004 filed by Muhammad Ejaz petitioner,
Criminal Miscellaneous No.1767-B of 2004 preferred by Malik Muhammad Sadiq
petitioner and Criminal Miscellaneous No.1817-B of 2004 submitted by Haji Ijaz Ahmed
and Muhammad Nawaz petitioners together as through all these petitions the above
mentioned petitioners have sought pre-arrest bail in the same criminal case, i.e. case
F.I.R. No.317 registered at Police Station Qilla Gujjar Singh, Lahore on 17-6-2003 for
offences under sections 406/420/468/471/477-A, P.P.C. Earlier on different petitions filed
by the present petitioners before the Court of Session, Lahore seeking the same relief had
been dismissed by the learned Additional Sessions Judge, Lahore through a consolidated
order, dated 23-2-2004. Hence, the present petitions before this Court.

2. After hearing the learned counsel for the parties at some length and going through the
record of this case it has straightaway been observed that in the F.I.R. no specific
allegation had been levelled by the complainant against any particular petitioner and the
allegations contained in the F.I.R. were levelled in collective and generalized terms. It
may be true that the report of the Forensic Science Laboratory, dated 3-11-2003 shows
that some mechanical erasure had been found in the relevant document but that report did
not, and it could not, point out as to who had committed such mechanical erasure. It may
be of some relevance to mention here that the vendors of the property in issue have not so
far come forward before any forum to allege that the words or the lines in the relevant
deed purported to have been added subsequently were not a part of the original deed. It is
available on the record that in their report, dated 18-9-1998 which report had been
prepared upon the orders of this Court, the Tehsildar, Lahore City as well as the Tehsildar,
Lahore Cantt. had found that the petitioners were bona fide purchasers of the relevant
property through registered sale-deed and even the Provincial Mohtasib had refused to
accept the complainant's allegations against the petitioners as correct. The record further
shows that in his report, dated 12-2-201 the Additional Deputy Commissioner
(General)/Collector, Lahore had found that the complainant party had itself scald some
land in excess of his own entitlement and, thus, it did not lie in the mouth of the
complainant party to complain against the present petitioners. The record also reveals that
in his inquiry report, dated 18-2-2004 the Sub-Registrar, Allama Iqbal Town, Lahore had
also concluded in favour of the petitioners party and against the complainant party. The
learned counsel for the complainant has, however, pointed out that the Settlement Officer,
Lahore had opined in his report, dated 19-0-2002 that the petitioners were in occupation
of an area in excess of their entitlement. He has gone on to point out that even the
relevant Local Council had also issued a notice to the petitioners to demolish the
superstructure built by them upon the area in dispute because that area fell in excess of
the petitioner's entitlement. All these divergent reports and factors clearly establish that
there is a genuine dispute between the parties regarding the true nature and extent of the
transaction between the petitioners and the original vendors of the relevant property and
that the dispute in issue has all the trappings of a legitimate civil dispute. It may be of
critical importance to mention here that a civil suit regarding the same dispute is already
pending before a civil Court at present and the complainant party of this case has already
applied before the civil Court for being impleaded as a party to the said suit. Adverting to
the all important consideration regarding mala fide implication of the petitioners in the
case in hand, a consideration which is 'a pre-requisite of admission of an accused person
to pre-arrest bail in a criminal case, the learned counsel for the petitioners have
maintained that the original vendors of the property in dispute have not so far lodged any
complaint before any forum to allege any forgery or interpolation having been committed
by the petitioners or regarding the petitioner's occupation of an area in excess of their
entitlement and the above mentioned report prepared by the Sub-Registrar, Allama Iqbal
Town, Lahore on 18-2-2004 records that the deed-writers as well as the local
commissions/Advocates have already sworn affidavits confirming that the alleged
interpolations in the relevant deed were part of the original deed itself and the same had
not been incorporated in the deed at a subsequent stage. The learned counsel for the
petitioners have also maintained that the petitioners are nothing but bona fide purchasers
of the property in dispute and the civil suit in respect of the dispute in issue has been
pending before the civil Court since the year of 2000 but the complainant had chosen to
lodge the F.I.R. in this case in the year 2003 and, thus, it was, according to them, quite
obvious that the complainant party had tried to convert a civil dispute into a criminal case
so as to bring the weight of criminal law to bear upon the petitioners in order to
pressurize them in the matter. The learned counsel for the petitioners have further
maintained that the alleged interpolations in the relevant deed did not affect the
measurements of the land sold and, thus, the alleged interpolations have no bearing upon
the allegation levelled in the F.I.R. regarding usurpation of excess land by the petitioners.
According to them, even if some excess land was sold to the petitioners still the liability
in that regard would fall upon the vendors and not upon the petitioners. They have, thus,
vehemently maintained before this Court that 'a genuine and bona fide civil dispute has
been transformed by the complainant party into a criminal case and such an exercise on
the part of the complainant party smacks of mala fide on its part. In the above mentioned
backdrop of this case such submissions of the learned counsel for the petitioners, have not
appeared to this Court to be without any foundation or substance. The learned counsel for
the State has confirmed the fact that the petitioners have already joined the investigation
and the Investigating Officer present before this Court has categorically stated that
nothing is to be recovered from the petitioners' possession at this stage as after
completion of investigation a challan has already been submitted before the Court of
competent jurisdiction. He has, however, maintained that the petitioner's custody is
required by the police in connection with this case only in order to complete a formality. I
may, however, observe in this context that liberty of a citizen is too precious and
sacrosanct to be allowed to be sacrificed at the altar of a mere formality. It is trite that the
concession of bail ought not to be withheld by way of premature punishment.

3. For what has been discussed above all the three above mentioned petitions are
accepted and the ad-interim pre-arrest' bail already allowed by this Court to all the
petitioners mentioned above are hereby confirmed subject to the furnishing of fresh bail
bonds by the said petitioners in the sum of Rs.50,000 (Rupees fifty thousand only) each
with one surety each in the dike amount to the satisfaction of the Area Magistrate of
Police Station Qilla Gujjar Singh, Lahore within a period of two weeks from today.
4. Before parting with this order it may be clarified that the observations made in the
present order shall be treated as tentative only and the same shall not prejudice the
learned trial Court in any manner.

N.H.Q./M-326/L Pre arrest bail allowed.


2008 Y L R 1089

[Lahore]

Before Khawaja Muhammad Sharif, J

BADAR MUNIR---Petitioner

Versus

ALI SAFIYAN and others---Respondents

Criminal Miscellaneous No.5504-CB of 2006, decided on 14th September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.497(5) & 498---Penal Code (XLV of 1860), S.420---Pre-arrest bail, cancellation


of---Both accused persons were named in F.I.R.---Co-accused was real brother of one of
said accused persons, while he was maternal uncle of other one---Said accused was
employee of the complainant and had introduced co-accused and one of said accused
persons to complainant and persuading him to purchase land in question, which land,
later on, was found not existing in the Revenue Record---Prima facie, both the accused
persons in connivance with co-accused had defrauded the complainant of the huge
amount---Considerations for the grant of bail before arrest and bail after arrest, were
altogether different and the ingredients for the grant of bail before arrest were very much
lacking in the case---Accused persons, in circumstances were wrongly extended
extraordinary concession of pre-arrest bail---Pre-arrest bail allowed to accused persons,
were cancelled.

Muhammad Taqi Khan for Petitioner.

Ch. Shahid Javed Warriach with Respondents Nos. 1 and 2 in person.

Abdul Habib S.-I. with record.

Abdul M. Hanif Khatana, A.A.-G.

ORDER

KHAWAJA MUHAMMAD SHARIF, J.---Learned counsel for the petitioner, in support


of this bail cancellation petition filed against the respondents, contends that both the
respondents are named in the F.I.R. who played a fraud with the petitioner in connivance
with Akbar Khan, a real brother of respondent Anwar Khan and maternal uncle of
respondent Ali Sufiyan; that they were the persons who took the complainant to the land
which was neither in their possession nor they had any Power of Attorney qua the same;
that considerations for the grant of bail before arrest and bail after arrest are altogether
different and that it is a fit case for recall of pre-arrest bail of the respondents.

2. Learned counsel for the respondents submits that the fraud, if any, has been committed
by Akbar Khan, a real brother of respondent Anwar. Khan and maternal uncle of
respondent Ali Sufiyan; that the respondents have falsely been implicated in this case;
that the respondents are not even witnesses to the said agreement; that the complainant
has changed the second page of the sale agreement; that after getting money the said
Akbar Khan had handed over possession of the said land to the complainant who later on
delivered its possession to the Punjab Support Board and that the respondents were
rightly granted pre-arrest bail in this case.

3. I have heard learned counsel for the parties. The said Akbar Khan was allowed interim
bail before arrest by this Court on 20-6-2006 till 27-6-2006 on which date Akbar was
present along with his Advocate Rana Muhammad Anwar but the record was not
available, a direction was given to the learned State counsel for production of record on
28-6-2006 on which date neither the said Akbar nor his learned counsel Mirza Azizur
Rehman or Rana Muhammad Anwar, Advocate were present, even no information qua
absence was laid before this Court and consequently criminal Miscellaneous No.4934-B
of 2006 was dismissed and initiation of proceedings under section 514, Cr.P.C. were
directed to be initiated against the sureties.

4. The case was registered on 11-11-2005, the case was investigated by Muhammad Arif
S.-I. while according to the present Investigating Officer, namely, Abdul Habib S.-I.
present in Court, the investigation of this .case entrusted to him on 7-9-2006 while the
earlier Investigating Officer has been transferred to Police Station Satokatla. This Court is
unable to understand that about an year has passed, Akbar accused is still at large, no
proceedings under sections 87/88, Cr.P.C. were initiated against him either by the present
Investigating Officer or the earlier one.

5. In view of the above, the learned Additional Advocate-General Punjab Ch. Muhammad
Hanif Khatana has been asked to direct the S.P. (Investigation) concerned to take
necessary legal and departmental action the delinquent police officers under intimation to
this Bench through Deputy Registrar (Judicial) of this Court.

6. As has been discussed above, the conduct of co-accused Akbar Khan is that he is
playing hide and seek with the Courts of law. As far as case of the present petitioners is
concerned, I may observe here that the respondents are named in the F.I.R. It is pertinent
to mention here that Akbar Khan is a real brother of respondent Anwar Khan while
maternal uncle of respondent Ali Sufiyan. Ali Sufiyan respondent was employee of the
complainant. It was he who introduced Akbar Khan and Anwar Khan to the complainant
and convinced the complainant to purchase the land in question which land, later on, was
not found to be present in the Revenue Record. Prima' facie, it were the respondents who,
in connivance with co-accused Akbar, defrauded the complainant of the huge amount.
Considerations for the grant of bail before arrest and bail after arrest and altogether
different and even ingredients for the grant of bail before arrest are very much lacking in
this case, so, I am of the prima face view that the respondents were wrongly extended the
extraordinary concession of pre-arrest bail. In view of the above, this petition is allowed
and the pre-arrest bail allowed to the respondents is hereby cancelled.

H.B.T./B-5/L Bail cancelled.


2008 Y L R 947

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD TARIQ JAVED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5230-B of 2007, decided on 8th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of---Cheque


issued by accused could not be encashed as the account was closed one day before its
encashment---Accused, thereafter, on the intervention of the respectables of the market,
undertook to pay said amount and issued another cheque, which also was dishonoured
and could not be encashed---When accused was seeking pre-arrest bail and no mala fide
had been proved against complainant and the police, pre-arrest bail could not be granted
to him---Mala fide on the part of accused and his brother, however was established---
Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of
accused was to be taken into consideration---No case for grant of pre-arrest bail having
been made out, accused did not deserve to be granted extraordinary relief of pre-arrest
bail---Bail petition, was dismissed, in circumstances.

Unilever Pakistan Limited through Manager v. Muhammad Rafique and another 2005
YLR 686; Muhammad Javed v. The State 2007 YLR 309 and Jehan Khan v. The State
PLD 2006 Lah. 302 rel.

Malik Amjad Pervaiz for the Complainant.

M. Azhar Javed Rana, D.P.G. for the State.

ORDER

IQBAL HAMEED-UR-REHMAN, J.---Petitioner seeks pre-arrest bail in a case


registered vide F.I.R. No.790/2007, dated 3-7-2007 under section 489-F, P.P.C. at Police
Station, Allama Iqbal Town, District Lahore.

2. The allegation against the petitioner as per F.I.R. is that the petitioner stood surety for
his brother Muhammad Rashid Javed in connection with an agreement of mortgage who
received an amount of Rs.5,00,000 from Nazim complainant and later on the petitioner
issued cheque for an amount of Rs.5,31,000 which was dishonoured.
3. The petitioner applied for grant of pre-arrest bail before the learned Addl. Sessions
Judge, Lahore which was dismissed vide order dated 24-7-2007.

4. Learned counsel for the petitioner at the very outset stated that his main arguments
regarding this petition is the same which were at the time of grant of ad interim bail to the
petitioner on 27-7-2007; that the case has been registered with mala fide intention. The
petitioner is only a witness of the agreement of mortgage which was neither executed by
him nor he stood surety in the said agreement. Moreover the cheque which had been
subsequently issued by the petitioner was obtained through fraud. At the most, it is a case
of civil liability. Further that the petitioner is merely a witness of the agreement and
nothing else. It was a dispute between the brother of the petitioner with the complainant
and that a witness cannot be changed into a surety. The account was closed because the
cheque had been obtained from the petitioner through fraud, as such the offence under
section 489-F, P.P.C. cannot be attributed to the petitioner and the offence does not fall
within the prohibitory clause, therefore, the petitioner is entitled to the grant of pre-arrest
bail.

5. On the other hand, the bail has vehemently been opposed by the learned counsel for the
complainant as well as by the learned D.P.G. on legal as well as factual premises. First it
is stated that it is a case of pre-arrest bail. The conduct of the petitioner is to be taken into
consideration that the petitioner obtained ad interim pre-arrest bail from the Court of
learned Addl. Sessions Judge, Lahore on 6-7-2007 and thereafter he had been obtaining
adjournments, as such the extraordinary concessional relief of pre-arrest bail cannot be
afforded to the petitioner. Secondly, the petitioner has not been able to establish any mala
fide or ulterior motives, which can be attributed to the complainant or to the police. That
the issuance of the cheque is admitted, only a single word has been used in generality that
fraud has been committed, but the petitioner has been unable to advance a single
arguments or documentary proof or an iota or evidence regarding the fraud having been
committed. Only by using the word fraud the mala fide cannot be established. That the
role attributed as a witness has nothing to do with the subsequent act of criminology. It is
further stated that the petitioner and his brother have devised a novel method of depriving
the complainant of an amount of Rs.5,00,000. Initially his brother Muhammad Arshad
Javed obtained Rs.5,00,000 against a mortgage of a shop situated at Ichhra, Lahore and
thereafter after obtaining the amount of Rs.5 lacs from the complainant they did not
deliver the possession of the shop to the complainant nor they paid any rent of the shop to
the complainant instead Muhammad Arshad Javed issued cheque which could be
encashed within four months, the said cheque could not be enchahed as they had closed
the account one day before Its encashment. At this stage through the intervention of the
respectables of the market the third brother admitted the liability of his brothers and
issued a cheque which would be encashed, after 40 days, the same was dishonoured and
could not be encashed. In the above perspective where the issuance of cheque is admitted
by the petitioner the offence under section 489-F P.P.C. is fully attracted. Twice the
complainant has been deprived of his hardened money. It is further argued that the said
offence after the amendment has been made non-cognizable offence. The petitioner has
been involved in a series of fraud as such, he is not entitled to the grant of bail on the
conduct of the petitioner as well as on the merits of the case.

6. Arguments heard. Record perused.

7. Admittedly the petitioner had issued the cheque when the brother of the petitioner after
obtaining Rs. 5,00,000 from the complainant had failed to hand-over the possession of
the shop to the complainant in pursuance to the agreement of mortgage. Thereafter he had
issued a cheque which could not be encashed as the account was closed one day before its
encashment. Thereafter the petitioner on the intervention of the respectables of the market
undertook to pay the said amount and issued a cheque of Rs.5,31,000 which also was
dishonoured and could not be encashed. At this stage, when the petitioner is seeking pre-
arrest bail and no mala fide has been proved against the complainant and the police, the
pre-arrest bail cannot, be granted to the petitioner. The petitioner has not been able to
show any mala fide on the part of the complainant. Moreover the mala fide on the part of
the petitioner and his brother is established. By relying upon the cases of Unilever
Pakistan Limited through Manager v. Muhammad Rafique and another (2005 YLR 686),
Muhammad Javed v. The State (2007 YLR 309) and Jehan Khan v. The State (PLD 2006
Lah. 302) no case for grant or pre-arrest bail is made out. Grant of pre-arrest bail is an
extraordinary concessional relief in which the conduct of the petitioner is to be taken into
consideration. In view of the conduct of the petitioner, the petitioner does not deserve to
be granted the extraordinary relief of pre-arrest bail by this Court, therefore, this bail
petition is dismissed.

H.B.T./M-630/L Petition dismissed.


2008 Y L R 898

[Lahore]

Before Tariq Shamim, J

SHOAIB AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6358-B of 2006, heard on 22nd August 2006.

Criminal Procedure Code (V of 1898)---

---S.498---Penal Code (XLV of 1860), S.409---Pre-arrest bail, refusal of---Accused was


nominated in the F.I.R. and specific role had been attributed to him---Delay in lodging the
F.I.R. had amply been explained therein---Procedure prescribed under Post Office Act,
1898 was complied with and Postmaster General had himself ordered registration of the
F.I.R.---No mala fides had been shown by accused against he complainant or the police
official for his false 'implication in the case, while mala fides on the part of complainant
or the police was a pre-requisite for the grant of extraordinary concession of pre-arrest
bail, which was lacking in the case---Accused, after dismissal of his bail application by
the Special Court, did not surrender himself before the police and escaped from the court
in order to approach High Court and on that ground alone accused was not entitled to the
grant of extraordinary concession of pre-arrest bail-Provisions of S.409, P.P.C:, which
entails a sentence of 10 years imprisonment were prima facie attracted to the case of
accused---Offence in circumstances fell within the prohibitory clause of S.497, Cr.P.C.---
Recovery of the mobile telephone was yet to be effected from accused who had not
joined the investigation at any stage-Grant of pre-arrest bail, in such situation, would
amount to putting the clog on the investigation process---Affidavit referred to by the
counsel for accused sworn by the complainant was inconsequential as the offence under
S.409, P.P.C. was not compoundable offence---Ample evidence being available on record
to connect accused with commission of offence, petition for grant of bail was dismissed
and ad interim pre-arrest bail granted to petitioner was recalled.

Muhammad Arshad and another v. The State 2005 MLD 1836; Syed Sabir Hussain Shah
and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563; Mazhar Iqbal and
others v. The State 2004 PCr.LJ 923; Allah Bakhsh v. The State 2004 PCr.LJ 285; Abdul
Shafiq v. The State 1988 PCr.LJ 852; Muhammad Yasin v. S.S.P. and others 2004 SCMR
868; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Muhammad Ali v.
The State 2005 YLR 1239; Rana Shahid Farooq and others v. The State 2004 PCr.LJ
1007; Wasif and others v. The State 2004 MLD 1533 and Malik Muhammad Nawaz
Khan and others v. The State 1997 PCr.LJ 390 rel.
Mian Shahid Iqbal for Petitioner.

Ch. Naeem Masood, Asstt. A.-G. for the State with Rizwan, S.-I.

ORDER

TARIQ SHAMIM, J.---Through this petition the petitioner seeks pre-arrest bail in case
F.I.R. No. 168/2006, dated 10-4-2006 for offence under section 409, P.P.C. registered at
Police Station Old Anarkali, Lahore.

2. The brief facts of the case are that a parcel was sent from England by the brother of the
complainant containing 5 mobile phones valued at Rs.1,19,500 which was
misappropriated by the petitioner and others.

3. The learned counsel for the petitioner contended that under the Post Office Act only an
officer who had been nominated could get a case registered on the direction of Post
Master General, hence the case registered by the Local Police was against the law; that
the complainant had compromised with the petitioner and had sworn an affidavit in the
said respect; that the provisions of section 409, P.P.C. were not attracted to the case of the
petitioner; that the delay in lodging of the F.I.R. had not been explained and finally,
contended that nothing had to be recovered from the petitioner as such he was entitled to
the concession of pre-arrest bail. Reliance was placed upon judgments Muhammad
Arshad and another v. The State (2005 MLD 1836), Syed Sabir. Hussain Shah and
another v. Syed Iftikhar Hussain Shah and another (1995 MLD 563), Mazhar Iqbal and
others v. The State (2004 PCr.LJ 923), Allah Bakhsh v. The State (2004 PCr.LJ 285) and
Abdul Shafiq v The State (1988 PCr.LJ 852).

4. On the other hand the learned Assistant Advocate-General appearing on behalf of the
State contended that the petitioner was nominated in the F.I.R. and specific role had been
attributed to him; that the delay in lodging the F.I.R. had been explained therein; that the
F.I.R. against the public servant could be registered by local police, hence there was 'no
violation of any provisions of the Post Office Act. Refers to the cases of Muhammad
Yasin v. S.S.P. and others (2004 SCMR 868) and M.Abdul Latif v. G.M. Paracha and
others (1981 SCMR 1101). Further contended that no mala fides had been shown by the
accused-petitioner against the complainant of the case or the police Officials for his false
involvement in the case; that recovery of the mobile phones had yet to be effected from
the petitioner who has not joined the investigation since the registration of the case; that
the affidavit relied upon by the learned counsel for the petitioner was of no consequence
as the offence was non-compoundable offence; That the offence under section,409, P.P.C.
was hit by prohibitory clause of section 497, Cr.P.C. hence the petitioner was not entitled
to extraordinary concession of pre-arrest bail.

5. I have heard the learned counsel for the parties and have perused the record.

6. The petitioner is named in the F.I.R. and specific role has been attributed to him. The
delay in lodging the F.I.R. has amply been explained therein. The dictum laid down by
the Hon'ble Supreme Court in the cases referred to by the learned it, Assistant Advocate
General is fully applicable to the case of the petitioner wherein it has been observed that
the local police can register a case against a public servant. The argument of the learned
counsel for the petitioner that the case was registered against the provisions of the Post
Office Act is misconceived as a perusal of the F.I.R. reveals that the procedure prescribed
under the Post Office Act was complied with and the Post Master General had himself
ordered registration of the F.I.R. No mala fide has been shown by the petitioner against
the complainant of the case or the police official for his false implication in the case.
Mala fide on the part of the complainant or the police is a pre-requisite for the grant of
extraordinary concession of pre-arrest bail which is lacking in the case. Reliance is placed
on Muhammad Ali v The State (2005 YLR 1239), Rana Shahid Farooq and others v. The
State (2004 PCr.LJ 1007), Wasif and others v. The State (2004 MLD 1533). The
petitioner after dismissal of his bail application by the learned Special Judge Central,
Lahore did not surrender himself before the police and escaped from the Court in order to
approach this Court on this ground alone the petitioner is not entitled to the grant of
extraordinary concession of pre-arrest bail. Reference is made to the case of Malik
Muhammad Nawaz Khan and others v. State 1997 PCr.LJ 390. The provisions of section
409, P.P.C. are prima facie attracted to the case of the petitioner which entails a sentence
of 10 years 'imprisonment. The offence therefore falls within the prohibitory clause of
section 497. Cr.P.C. The recovery of the mobile telephones is yet to be effected from the
petitioner who has not joined the investigation at any stage and in such situation grant of
pre-arrest bail would amount to putting a clog in the investigative process. Reference is
made to Wasif and 2 others v. The State (2004 MLD 1533). Further, the affidavit referred
to by the learned counsel for the petitioner sworn by the complainant is inconsequential
as the offence under section 409, P.P.C. is a non-compoundable offence. A tentative
assessment of the evidence on the record shows that at present there is ample evidence on
the record to connect the petitioner with the commission of offence alleged in the F.I.R.
The judgments referred to by the learned counsel for the petitioner are distinguishable.

7. For what has been discussed above the petition being without force is dismissed and
the ad interim pre-arrest bail granted to the petitioner vide order dated 2-8-2006 is
recalled.

H.B.T./S-205/L Bail refused.


2008 Y L R 330

[Lahore]

Before M. Bilal Khan, J

MUNEER AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8410/B of 2007, decided on 20th November, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302/337A (i)/337-L (ii)/109/148/149---Pre-


arrest bail, grant of---Trial Court had admitted the accused to post arrest bail due to non-
availability of prosecution witnesses in the case and adjourned the case sine die-After two
years, on the application of the complainant, that prosecution witnesses had become
available, Sessions Court cancelled the bail granted to accused under Section 497(5),
Cr.P.C---Accused had sought pre-arrest bail---Validity---Consideration for grant of bail
and for cancellation of bail once duly granted were entirely different-Pre-requisites
required for invoking Section 497(5), Cr.P.C. were not present in the case---Mere fact that
after two years the witnesses had become available, by itself, was not sufficient to recall
the concession of bail allowed to accused, especially so when they were not alleged to
have misused the said concession---Bail once granted could not be cancelled unless there
were compelling circumstances or the bail granting order was void, illegal, absurd or
fanciful---None of the said conditions were available to recall the bail order---Ad interim
pre-arrest, bail allowed to accused was confirmed in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.497(5)---Cancellation of bail---Pre-requisites---Bail once granted cannot be recalled


unless there are compelling circumstances or the bail granting order is void, illegal,
absurd or fanciful.

Zafar Iqbal Chohan for the Petitioners.

Muhammad Iqbal Chaudhry, Deputy Prosecutor General for the State.

Tanvir Hussain, A.S.-I. P.S. Satrah District Sialkot with record.

ORDER
M. BILAL KHAN, J.---Munir Ahmed and Shakeel Ahmed sons of Yousaf, the
petitioners seek pre-arrest bail in case F.I.R. No.305/2003 dated 2-12-2003, registered
with Police Station Satrah District Sialkot, for offences under sections 109, 148, 302,
337-A(i), 337-L(ii), 149, P.P.C.

2. The prosecution story need not be detailed for disposal of this bail application as it
would be sufficient to state that the petitioners were undergoing trial in the aforesaid case
before the learned Additional Sessions Judge, Daska.

3. On 21-6-2005, it was brought to the notice of the Court that P. Ws. in the case namely
Sabir Ali, Khadam Hussain, Muhammad Sharif, Asghar Ali, Muhammad Tariq,
Muhammad Asif, Muhammad Khalid and Ghulam Haider had abandoned their places of
residences from village Kot Mokhal. The statement of the process server as C. W. was
recorded to the said effect and the learned trial court also took into account statement
made by the Lambardar of village Kot Mokhal verifying that the said witnesses had
abandoned their residential abodes due to the fact that a murder case had been registered
against them at Police Station Satrah, District Sialkot.

4. Keeping in view the circumstances of the case the learned Additional Session Judge
admitted both the petitioners to post-arrest bail in the sum of Rs.1,00,000 each with one
surety each in the like amount to his satisfaction and adjourned the case sine die.

5. Thereafter it appears that after two years on 18-8-2007, Sabir Ali the complainant of
the case made an application to the learned Additional Sessions Judge/trial court under
Section 497(5), Cr.P.C., praying therein that since he and other witnesses had become
available, bail granted to the petitioners may be cancelled. The learned Additional
Sessions Judge vide his order dated 22-10-2007 proceeded to accept the said application
and cancelled the bail allowed to the petitioners vide order dated 21-6-2005.

6. I have heard Mr. Zafar Iqbal Chohan, the learned counsel for the petitioners, Mr.
Muhammad Iqbal Chaudhry, Deputy Prosecutor-General and have perused the record
brought by Tanvir Hussain A.S.-I. Police Station Satrah district Sialkot.

7. I agree with the learned counsel for the petitioners that considerations for grant of bail
and for cancellation of bail once duly granted are entirely different. A perusal of the
impugned order reveals that pre-requisites required for invoking Section, 497 (5), Cr.P.C.,
were not present in the case. The mere fact that after two long years the witnesses had
become available, by itself was not sufficient enough to recall the concession of bail
allowed to the petitioners especially so when there was no allegation that they had ever
misused the said concession. It is trite that bail once granted cannot be recalled unless
there are compelling circumstances or that bail granting order is void, illegal, absurd or
fanciful. As already stated elsewhere" none of the aforesaid' conditions were available to
recall the bail order.

8. The learned Deputy Prosecutor General, for State has opposed this petition for grant of
pre--arrest bail, however, he could not point out any absurdity in the original bail granting
order dated 21-6-2005, which could warrant interference by the learned Additional
Sessions Judge.

9. In this view of the matter ad interim pre-arrest bail allowed to the petitioners vide order
dated 5-11-2007 is hereby confirmed. They will keep on appearing before the learned
trial court regularly. In case they absent themselves, the learned trial court shall be at
liberty to take action strictly in accordance with law undeterred by this order. Disposed
of.

N.H.Q./M-574/L Pre-arrest bail allowed.


2008 M L D 1030

[Lahore]

B e f o r e Kazim A li Malik , J

HAJI AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 150-CB of 2007, decided on 23rd April, 2008.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Grant of pre-arrest and after arrest bail---Considerations for---
Pre-arrest bail was an extraordinary relief, whereas the post-arrest bail was an
ordinary relief---Considerations for pre-arrest bail and after arrest bail were altogether
different---Any good ground for post-arrest bail could be no ground for pre-arrest---
While seeking pre-arrest bail it was duty of accused to establish and prove mala fide
on the part of the Investigating Agency or the complainant---Trial Court was required
to examine the plea of mala fide put forward by accused after having made tentative
assessment of the material laid down before him and that exercise should not have
been postponed till the inception of trial and recording of evidence---Ground that
accused was no more required for investigation purpose, was a good ground for post-
arrest bail only.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail,


cancellation of---Offence with which accused stood charged though did not fall within
the prohibitory clause of S.497 Cr.P.C., but that was no ground for anticipatory bail---
Accused, in bailable offences, could claim bail as a matter of right, whereas in non-
bailable offences the bail was a concession/grace/favour by the court in the light of
legal principle ---Offence not falling under the prohibitory clause of S.497 Cr.P.C.,
did not provide a basis to allow extraordinary relief of anticipatory bail to accused---
No hard and fast rule could be framed in that regard and it depended upon the facts of
each and every case---No ground for extraordinary relief of anticipatory bail, in the
present case, was available to accused and the Trial Court had treated the grounds for
post-arrest bail as grounds for pre-arrest bail against recognized and established
principles of law---Accused though was present in the Court during the course of
argument, but he slipped away at the time of pronouncement of order---Such conduct,
rather misconduct on the part of accused, had made himself disentitled to
discretionary relief of bail---Bail granting order of the Trial Court, was set aside, in
circumstances.
Talib Hussain v. State 2007 PCr.LJ 1064; Askari Leasing Limited v. Rana Muhammad
Asif and another 2005 PCr.LJ 950; Liaqat Hussain v. State 2006 MLD 166; Muzaffar
Iqbal v. Muhammad Imran Aziz and others 200,4 SCMR 231; Suba Khan v.
Muhammad Ajmal and 2 others 2006 SCMR 66; Talib Hussain v. The State 2007
PCr.LJ 1064; Major Anwar ul Haq v. The State PLD 2005 Lahore 607; Muhammad
Ayub v. Rana Abdul Rehman and another 2006 YLR 1852; Qasim Khan v. Sharafat
Khan and another 2003 YLR 2910 and Tariq Bashir and 5 others v. The State PLD
1996 SC 34 ref.

Khawaja Qaisar Butt for Petitioner.

Mian Bashir Ahmad Bhatti, DPG.

Mahboob Ahmad, S.H.O. Police Station, City Alipur.

ORDER

KAZIM ALI MALIK, J.---Haji Ahmad, petitioner/complainant got registered a


case F.I.R. No. 227, dated 2-7-2008 under section 489-F, P.P.C. at Police Station
City Alipur, District Muzaffar Garh with an allegation that Raheem Bakhsh,
accused, had been receiving different amounts from the complainant's son Abdul
Razzaq residing abroad through electronic transfer on his behalf; that Raheem
Bakhsh withheld and misappropriated the money which he had received through
such electronic transfer, upon which the complainant made an application and
sensing some action Raheem Bakhsh issued three cheques of different amounts in
favour of the complainant, which on their presentation before National Bank of
Pakistan, Alipur Branch had been dishonoured.

2. Apprehending arrest in the above said case Raheem Bakhsh, accused, made an
application for pre-arrest bail before the learned Additional Sessions Judge, Alipur,
which was allowed vide order, dated 27-7-2007. The complainant has sought
cancellation of pre-arrest bail of Raheem Bakhsh, accused, through this application
under section 497(5), Cr.P.C.

3. The following reasons weighed with the learned Additional Sessions Judge while
allowing anticipatory bail to the accused:

(i) According to the medical certificate the petitioner was heart patient and an
old man.

(ii) Mala fide behind issuance of disputed cheques would be determined after
recording of evidence.

(iii) The offence does not fall within the prohibitory clause of section 497,
Cr.P.C.

(iv) The person of accused was not required for recovery of cheques as the
same were already with the complainant.
4. To start with I must say that pre-arrest bail is an extraordinary relief whereas the
post-arrest bail is an ordinary relief. Considerations for pre-arrest bail and after
arrest bail are altogether different. A good ground for post-arrest bail may be no
ground for pre-arrest bail. It appears that the above said legal principles escaped
notice of the learned Additional Sessions Judge, while granting extraordinary relief
of anticipatory bail to Raheem Bakhsh, respondent/accused. During the course of
arguments Raheem Bakhsh appeared in person. Apparently, he is neither extremely
old nor in a bad state of health.

5. There is no dispute as to this that the respondent/accused issued cheques in


dispute in favour of the complainant, which on their presentation before the
concerned Branch of National Bank of Pakistan had been dishonoured. It was in the
knowledge of the respondent/accused that he had no money in the Bank account and
despite this he issued cheques in favour of the complainant. To my mind this was an
evidence against the respondent/accused of his dishonest intention. While seeking
pre-arrest bail it was duty of the respondent/accused to establish and prove mala fide
on the part of the Investigating Agency or the complainant. The learned Additional
Sessions Judge, was required to examine the plea of mala fide put forward by the
respondent/accused after having made tentative assessment of the material laid
before him and this exercise should not have been postponed till the inception of
trial and recording of evidence.

6. It is true that the offence with which the respondent/accused stands charged does
not fall within the prohibitory clause of section 497, Cr.P.C. but it was no ground for
anticipatory bail. In bailable offences the accused can claim bail as a matter of right
whereas in non-bailable offences the bail is a concession/grace/favour by the Court
in the light of legal principles. The offence not falling under the prohibitory clause
of section 497, Cr.P.C., did not provide a basis to allow extraordinary relief of
anticipatory bail to the respondent/accused.

7. Another reason for grant of pre-arrest bail was that the accused was no more
required for investigation purpose. Without fear of contradiction I would say that it
was a good ground for post-arrest bail only.

8. The learned Additional Session Judge allowed anticipatory bail placing reliance
on the case of Talib Hussain v. State (2007 PCr.LJ Lahore 1064). Here I would say
that no hard and fast rule can be framed in this regard and it depends upon the facts
of each and every case. In case Askari Leasing Limited v. Rana Muhammad Asif and
another (2005 PCr.LJ 950) pre-arrest bail allowed to the accused had been recalled
by this Court. In another case Liaqat Hussain v. State (2006 MLD Lahore 166) pre-
arrest bail to the accused of an offence under section 489-F had been declined by
this Court.

9. The learned counsel for respondent/accused has placed reliance on Muzaffar Iqbal
v. Muhammad Imran Aziz and others (2004 SCMR 231), Suba Khan v. Muhammad
Ajmal and 2 others (2006 SCMR 66), Talib Hussain v. The State (2007 PCr.LJ
1064), Major Anwar ul Haq v. The State (PLD 2005 Lahore 607), Muhammad Ayub
v. Rana Abdul Rehman and another (2006 YLR 1852), Qasim Khan v. Sharafat Khan
and another (2003 YLR 2910) and Tariq Bashir and 5 others v. The State (PLD 1996
Supreme Court 34) and has contended that strong and exceptional grounds are
required for cancellation of bail. With extreme respect at my command for the case-
law relied upon by the learned counsel, I would say that the facts of precedent cases
are altogether different from that of the case in hand. I am of the view that no ground
for extraordinary relief of anticipatory bail was available to the respondent/accused
and the learned Additional Sessions Judge treated the grounds for post-arrest bail as
grounds for pre-arrest bail against recognized and established principles of law.

10. Raheem Bakhsh, respondent accused, named present during the course of
arguments, but he slipped away at the time of pronouncement of order. This conduct
rather misconduct on the part of the respondent/ accused has made himself disentitled
to discretionary relief of bail.

11. For what has been stated above I allow this application and set aside the bail
granting order of the learned Additional Sessions Judge.

H.B.T./H-7/L Application allowed.


2008 M L D 989

[Lahore]

B ef ore Muhammad Jehangir Arshad, J

RASOOL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6-B of 2007, decided on 20th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of


Hudood) Ordinance (VII of 1979), S.12---Juvenile Justice System Ordinance (XXII of
2000), Preamble---Pre-arrest bail, refusal of---Counsel for accused had failed to point
out any mala fide on the part of prosecution/complainant in the presence of statement
of the victim explicitly involving accused in the commission of unnatural offence with
him---Accused was not entitled to concession of pre-arrest bail---Question of
protection under Juvenile Justice System Ordinance, 2000 could only be considered at
the trial or for the purpose of post-arrest bail and not for considering pre-arrest bail
application---Ad interim pre-arrest bail earlier granted to accused was recalled.

Muhammad Ehsaan Alvi for Petitioner.

Sagheer Ahmad Bhatti for the Complainant.

Zahoor Ahmad Chughtai and Muhammad Akram, A.S.-I. for the State.

ORDER

MUHAMMAD JEHANGIR ARSHAD, J.---Petitioner seeks pre-arrest bail in case


F.I.R. No. 179, dated 16-6-2006 under section 12 of Offence of Zina (Enforcement of
Hudood) Ordinance VII of 1979 read with section 377, P.P.C. registered with Police
Station Saddar Burewala, District Vehari.

2. According to the F.I.R. the allegation against the petitioner is that he along with co-
accused namely Arif abducted Shakil Anjum son of complainant by way of
inducement and took him to barley field, where Arif co-accused subjected him to
unnatural offence, whereas the petitioner remained there at the spot, when the
complainant reached at the place of occurrence, both, the petitioner as well as his co-
accused Arif, ran away and then victim told the complainant that earlier to Arif, Rasul
Khan petitioner also committed unnatural offence with him.
3. It is submitted by learned counsel for the petitioner that after investigation it has
come out that the petitioner was only present but never committed any unnatural
offence with the victim and that the main co-accused Arif is roaming in the area and
has not been arrested by the police with the connivance of the complainant himself. It
is next argued that at the time of occurrence the petitioner was below eighteen years
of age and thus is entitled to the protection of Juvenile Justice System Ordinance,
2000.

4. On the other hand, learned counsel for the complainant as well as State have
opposed this bail application by contending that there is no mala fide on the part of
prosecution or the complainant which is the basic requirement for claiming the
concession of pre-arrest bail, and that the victim in his statement under section 161,
Cr.P.C. specifically named the petitioner for committing unnatural act with him and
that even if the contention of learned counsel for the petitioner that he has been found
to be merely present at the place of occurrence, is believed, even then the petitioner
cannot be absolved of his liability in terms of section 12 of the Ordinance. Further,
that though the petitioner is not admitted as a juvenile, yet the said question can only
be determined for the purpose of trial or for bail after arrest and not for pre-arrest bail,
therefore, if the petitioner was below eighteen years at the time of offence even then
he cannot be allowed pre-arrest bail being involved in a heinous offence.

5. I have considered the arguments of learned counsel for the parties and have also
perused the record.

6. As the learned counsel for the petitioner has failed to point out any mala fide on the
part of the prosecution of the complainant and further in the presence of statement of
the victim explicitly involving the petitioner in the commission of unnatural offence
with him, I am afraid that the petitioner is not entitled to concession of pre-arrest bail.
So far as the question of protection under Juvenile Justice System Ordinance, 2000. is
concerned, there is considerable force in the contention of learned counsel for the
complainant that the same can only be considered at the trial or for the purpose of
post-arrest bail and not for considering pre-arrest bail application. Resultantly, I am
not inclined to extend the concession of pre-arrest bail to the petitioner at this stage,
this petition as such is dismissed and ad-interim pre-arrest bail earlier granted to him
is recalled.

H.B.T./R-14/L Bail granted.


2008 Y L R 1544

[Karachi]

Before Dr. Rana Muhammad Shamim, J

MUNIR AHMAD alias FAZALULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Pre-arrest Bail Application No.S-164 and M.As. Nos. 654, 655 of 2008,
decided on 31st March, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 302/337-H- (2)/34---Pre-arrest bail, refusal


of---Specific role was attributed to the accused of catching hold of the deceased,
which had facilitated co-accused to hit direct fire upon him which caused his death---
Eye-witnesses had fully implicated the accused by describing the role performed by
him in the occurrence--Involvement of accused, prima facie, in commission of offence
could not be ruled out---No apprehension was shown on account of motivation on the
part of police---Right of pre-arrest pail was limited to certain conditions which were
lacking in the case of accused---Pre-arrest bail was declined to accused in
circumstances.

Sukhio v. The State 2002 YLR 3663; Suba Khan v. Muhammad Ajmal and 2 others
2006 SCMR 66; Muhammad Sadiq and another v. The State 1999 SCMR 1654; Abdul
Rehman v. Javed and 2 others 2002 SCMR 1415; Akhtar Hussain v. The State 1996
PCr.LJ 1816; Haji Maa Din and another v. The State and another 1998 SCMR 1528;
Qasim v. The State 2001, YLR 214; Muhammad Afzal v. The State 2005 YLR 1812;
Zia-ul-Hassan v. The State PLD 1984 SC 192; Muhammad Azam v. The State 1996
SCMR 71; Muhammad Sarwar v. The State 1972 SCMR 57; Muhammad Yaqub v.
Muhammad Ramzan and another PLD 1987 Lahore 99; Abdul Ghani v. The State
1996 SCMR 555 and Muhammad Sabtain Shah v. The State 1978 SCMR 403 ref.

(b) Criminal Procedure Code (V of 1898)--

----S.498---Pre-arrest bail---Scrape---Court has no power to grant bail before arrest


unless all the conditions laid down by superior Courts from time to time are satisfied,
most essential of them being the intended arrest of the accused tainted with mala
fides, which must be specifically stated and also irreparable injury by motivated
police.

Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

(c) Criminal Procedure Code (V of 1898)---


----S.498---Pre-arrest bail, grant of---Essentials---Person seeking pre-arrest bail has to
establish that case was mala fide and he was being involved to be disgraced---Where
none of such facts exist, concession of pre-arrest bail cannot be extended to the
applicant.

Muhammad Yaqub v. Muhammad Ramzan and another PLD 1987 Lahore 99 ref.

(d) Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail---Scope---Question involved inquiry into factual matters---


Such matters cannot be undertaken while deciding pre-arrest bail applications.

Muhammad Sabtain Shah v. The State 1978 SCMR 403 ref.

(e) Criminal Procedure Code (V of 1898)---

----Ss. 497/498---Bail---Assessment of evidence----Evidence of parties cannot be


assessed or tested in depth at bail stage, purpose being to avoid conflict of opinion
one way or the other on the merits of the case.

Abdul Ghani v. The State 1996 SCMR 555 ref.

Zubair Ahmed Rajput for Applicant.

Muhammad Mehmood and S. Yousfi, Asstt. A.-G. for the State.

ORDER

DR. RANA MUHAMMAD SHAMIM, J.---The applicant has assailed the bail order
dated 13th March, 2008 passed by learned 3rd Additional Sessions Judge, Khairpur,
whereby the bail before arrest to the applicant was refused.

In brief the complainant Manzoor Ahmed Memon in the F.I.R. No. 91 of 2007 dated 30-
6-2007 registered at Police Station Baberloi, under sections 302, 337H(2), 34, P.P.C.,
stated that he has old enmity with accused Saeed and others and the former used to
restrain complainant's nephew Ehsanullah to accompany Manzoor Ahmed else he will be
murdered. On the eventful day, at Isha prayer time, complainant along with his nephew
Ehsanullah, Imran Ahmed and Mujeeb Rahman were on way to their house and when at
about 8-30 p.m. reached at the house of Haji Habibullah Memon, they noticed presence
of accused Saeed Ahmed and Muhammad Ali alias Aves with pistols, Fazalullah alias
Munir (present applicant) with repeater. Applicant challenged the complainant party to
stop and they would not be spared. In the meantime, accused Saeed Ahmed made straight
fire hitting Ehsanullah who fell down while raising cries. Other accused also made aerial
firing in order to create harassment. On fire shot reports and cries, other people also came
there. Seeing them, accused ran away, Ehsanullah aged about 28 years had sustained fire-
arm injuries at his head near ear and blood was oozing. He died at the spot. Consequently,
above noted F.I.R. was lodged.
Learned advocate for the applicant contended that the applicant has falsely been
implicated for ulterior motives; that the learned trial Judge has completely failed to
consider material available on record and the supplementary report wherein applicant was
declared innocent and his name was kept in column No.2; that there is inconsistency
between the contents of F.I.R. and statements of P.Ws recorded under S.161 Cr.P.C. as
well as medical evidence; that the P.Ws, who claimed to be eyewitnesses have been
examined after delay of two days as such credibility of eyewitnesses namely Imran
Ahmed, real brother of deceased and Mujeeb Rehman, close relative of deceased is not
free from doubt and false implication of the applicant cannot be ruled-out; that the
allegation against the applicant is of aerial firing only. The F.I.R. was lodged after delay
of 11 hours; that the story as unfolded in the F.I.R. does not inspire confidence and
appears to be tailor-made/managed by the complainant. Lastly, he argued that the
applicant is patient of Disc Herniation and had surgery in the year 2004 and since then he
complains for pain. He produced medical certificate and report of special medical board
arranged at his own that the applicant is responsible Bank Officer, absolutely innocent
and has not committed any offence as alleged. He prays for pre-arrest bail to save his
honour and dignity. In support of his contentions, he relied upon cases of Sukhio v. The
State 2002 YLR 3663, Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66,
Muhammad Sadiq and another v. The State 1999 SCMR 1654, Abdul Rehman v. Javed
and 2 others 2002 SCMR 1415, Akhtar Hussain v. The State 1996 P.Cr.L.J 1816, Haji
Maa Din and another v. The State and another 1998 SCMR 1528, Qasim v. The State
2001 YLR 214 and Muhammad Afzal v. The State 2005 YLR 1812.

Learned Asstt. A.G. has opposed the grant of bail application on the ground that the
applicant is nominated in F.I.R. and specific role was assigned to him, that the applicant
challenged the complainant party and directed them to stop and would not be spared. The
applicant and co-accused caught hold of Ahsanullah (deceased) from arms and other co-
accused Muhammad Saeed directly fired at deceased Ehsanullah. P.Ws examined by the
Investigating Officer under S.161, Cr.P.C. have fully implicated the applicant and
supported the complainant version. Applicant prima facie at this stage appears to be
connected with the crime. No any serious enmity is alleged against the complainant to
falsely implicate him; that the enmity was alleged against Manzoor Ahmed, who is the
brother of the applicant but the complainant has not implicated said Manzoor Ahmed.
Hence, submissions advanced by learned advocate for the applicant got no substance; that
the Investigating Officer submitted report under S.173, Cr.P.C, where the applicant was
nominated with specific role and on the basis of evidence so collected opined that the
applicant is actual culprit. He further submits that it is a settled law that at the time of
deciding bail application, deeper appreciation of evidence is not required. Pre-requisite
conditions of pre-arrest bail are lacking. Hence, learned trial Court's order requires no
interference and the applicant is not entitled for the grant of bail. He also submits that the
applicant misused the concession of interim bail as in spite of notices issued by the
Investigating Officer he has not appeared and joined the investigation. He relied upon
cases of Ziaul-Hassan v. The State PLD 1984 SC 192, Muhammad Azam v. The State
1996 SCMR 71, Muhammad Sarwar v. The State 1972 SCMR 57, Muhammad Yaqub v.
Muhammad Ramzan and another PLD 1987 Lahore 99, Abdul Ghani v. The State 1996
SCMR 555, and Muhammad Sabtain Shah v. The State 1978 SCMR 403.
I have heard learned counsel for the applicant, learned Asstt. A.-G., perused the material
available on case file and gone through the case laws. The specific role to the applicant is
attributed by catching hold of Ehsanullah (deceased) which facilitated co-accused
Muhammad Saeed to hit direct fire upon him which caused his murder. The eyewitnesses
have fully implicated the applicant by describing the role performed by the applicant in
committing murder of Ehsanullah (deceased). Prima facie involvement of applicant in
commission of offence cannot be ruled out.

In case of Zia-ul-Hassan (supra), the Honourable Apex Court has held that the Court has
no power to grant bail before arrest unless all the conditions laid down by the superior
Courts from time to time are satisfied. The most essential of them is that the intended
arrest would be tainted with mala fides which must be specifically stated. The Court has
also viewed regarding condition of irreparable injury on the basis of motivated police. In
case of Muhammad Yaqub v. Muhammad Ramzan (supra) it is held that the person
seeking pre-arrest bail has to establish that case was mala fide and he was being involved
to be disgraced. Where none of such facts exist concession pre-arrest bail cannot be
extended to the applicant. In case of Muhammad Subtain Shah (supra) the Hon'ble
Supreme Court of Pakistan has held at the time of deciding bail before arrest, question
raised involving inquiry into factual matters and such matters can not be undertaken
while deciding pre-arrest bail application. The grant of bail is discretionary matter and
since learned trial Judge has not exercised his discretion arbitrarily or capriciously, the
Apex Court has not interfered with the order refusing of bail. In case of Abdul Ghani
(supra), the Hon'ble Apex Court has held that evidence of parties can not be assessed/
tested in depth at bail stage, purpose being to avoid confliction of opinion one way or the
other on the merits of the case. In case of Muhammad Azam (supra), the Honourable
Apex Court has held that right of pre-arrest bail is limited to exceptional and rare cases
which are based on mala fides/ enmity or where no material is shown to have been
committed on the bare reading.

In the light of above discussion and case laws and in presence of serious allegations
levelled against the applicant, who is assigned specific role and no apprehension is shown
on account of motivation on the part of police, I am of the considered view the
discretion exercised by learned trial Judge by refusing bail before arrest to the applicant
has rightly been exercised. The right of pre-arrest bail is limited to exceptional and rare
cases which are lacking in the case of applicant.

Accordingly, bail application is dismissed along with listed applications. The case laws
cited by learned counsel for the applicant are not applicable to the facts and
circumstances of the case in hand.

N.H.Q./M-24/K Petition dismissed.


2003 S C M R 68

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

Mst. QUDRAT BIBI---Petitioner

Versus

MUHAMMAD IQBAL and another---Respondents

Criminal Petition No. 196 of 2002, decided on 22nd July, 2002.

(On appeal from the order dated 10-5-2002 passed by Lahore High Court, Rawalpindi
Bench, Rawalpindi in Criminal Miscellaneous No.277/B/C/2002).

(a) Criminal Procedure Code (V of 1898)-----

----S.497(5)---Penal Code (XLV of 1860), S.302/34---Cancellation of pre arrest bail


---F.I.R. was promptly lodged in which the accused was attributed the specific role of
causing injuries with a hatchet on the neck of the deceased---No mala-fide had been,
prima facie, established against the complainant for false involvement of accused in the
commission of the offence---Complainant being the sister of the deceased and an
eye-witness of the incident could not possibly allow the real culprit to escape and falsely
involve some one else in his place---Even otherwise phenomenon of substitution was
very rare in the area---Court at bail stage should not have stamped the prosecution
witness who had recorded their statements promptly to be false witnesses and accepted
the statements of defence witnesses whose statements were recorded after considerable
period of the occurrence by the Investigating Officer to conclude that the accused was
innocent---Reasons prevailed upon the High Court as well as the Sessions Court were,
therefore. not acceptable being contrary to the principle of settled law---Overt act
attributed to the accused of causing hatchet injury to the deceased was corroborated by
medical evidence---Petition for leave to appeal was converted into appeal in
circumstances and allowed as a result whereof pre arrest bail granted to accused was
recalled.

Syed Saeed Muhammad Shah and another v. the State 1993 SCMR 550; Manzoor and 4
other v. The State PLD 1972 SC 81; Muhammad Safdar and others v. The State 1983
SCMR 645; Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97; Muhammad
Sadik and others v. The State 1980 SCMR 203; Allah.Ditta and others v. The State 1990
SCMR 307; Razi Khan v. Muhammad Mushtaq and another 1996 SCJ 779 and
Muhammad Hussain v. State PLJ 1996 SC 795 ref,

(b) Criminal Procedure Code (V of 1898)------


----S.497/498---Penal Code (XLV of 1860), S.300/34---Bail---Police opinion ---Ipsi dixit
opinion of the Investigating Officer cannot be accepted to exonerate the accused from the
commission of the offence.

Manzoor and 4 other v. The State PLD 1972 SC 81 ref.

(c) Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail---


Principle---Concession of bail before arrest is granted to an accused if it is established
that his involvement in the case in based on mala fides by the prosecution.

Muhammad Safdar and others v. The State 1983 SCMR 645 and Ajmal Khan v. Liaquat
Hayat and another PLD 1998 SC 97 ref.

Qazi Muhammad. Amin, Advocate Supreme Court and Ch. Akhtar Ali,
Advocate-on-Record for Petitioner.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court and M.A. Zaidi,
Advocate-on-Record for Respondent No. 1.

Ch. Ghulam Muhammad, Advocate Supreme Court for the State.

Date of hearing: 19th July, 2002.

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has


been filed against order dated 10th May, 2002 passed by Lahore High- Court, Rawalpindi
Bench, Rawalpindi whereby Criminal Miscellaneous Application for cancellation of bail
of respondent No.1 instituted by petitioner has been dismissed.

2. The prosecution case as disclosed in F.I.R, is that on 15-12-2001 Mst. Qudrat Bibi was
proceeding for the house of Mst. Shahin whereas Muhammad Rafiq was returning back
from the house of Mst. Raj Bibi. When Muhammad Rafiq reached near the Haveli of
Muhammad Riaz, at about 3-30 p.m. Manzoor Hussain and Muhammad Iqbal
(respondent No. 1) both armed with a hatchet, Muhammad Miskin son of Shah Nawaz
and Muhammad Nazar son of Muhamtnad Iqbal emerged out from the Haveli of Sarsa
Khan. Muhammad Nazar raised a Lalkara that Muhammad Rafiq should not be spared.
Thereafter Muhammad Miskin caught hold of a stone and pelted it at Muhammad Rafiq,
which hit him at his forehead. Manzoor Hussain inflicted two hatchet blows, which hit
Muhammad Rafiq at left side of his head as well as left side of neck. Muhammad Iqbal
inflicted a hatchet blow, which hit Muhammad Rafiq on right side of neck. Thereafter,
accused person fled away: Muhammad Rafiq died at the spot. The motive as disclosed
was that three years earlier Munir Hussain brother of Manzoor Hussain co-accused was
murdered and Muhammad Rafique deceased was challaned in that case. However, at the
trial he was acquitted of the charge, therefore, due to said grudge the incident took place.
The F.I.R. was lodged at about 4-30 p.m. on the same day at the instance of petitioner
who is sister of the deceased.

3. Pending investigation of the case learned Sessions Judge, allowed ad interim pre-arrest
bail to respondent No. 1, which was confirmed on 2-3-2002. The petitioner filed Criminal
Miscellaneous Application No.277/B/C of 2002 for cancellation of bail which has been
dismissed by learned Single Judge in Chambers of Lahore High Court vide impugned
order dated 10-5-2002. As such instant petition has been filed for leave to appeal. ,

4. Learned counsel contended that learned High Court has granted concession of bail
before arrest on accepting the opinion of the Investigating Officer qua the testimony of
ocular evidence furnished by four witnesses duly corroborated by the medical evidence
contrary to the recognized principle for allowing anticipatory bail to an accused person.

5. On the other hand learned counsel for respondent/accused Muhammad Iqbal contended
that before the Investigating Officer respondent examined good number of witnesses who
in unequivocal terms deposed that he has been falsely involved in the commission of
offence. He further stated that involvement of respondent in the case is in pursuance of a
growing trend of involving as many as male members of a family in the commission of
offence so no one could pursue the case effectively.

6. We have heard both the sides and have perused the record including the police file
carefully. Mst. Qudrat Bibi sister of deceased lodged report in respect of incident of
murder of Muhammad Rafiq which took place at about 3-30 p.m. at Police Station Kallar
Kahar situated at a distance of 15 miles from the place of incident at 4-30 p.m. therefore,
report was lodged with promptitude. In F.I.R. M/s. Manzoor Hussain son of Soba Khan,
Muhammad Iqbal son of Baz Khan both armed with hatchet, Muhammad Miskin son of
Shah Nawaz and Muhammad Nazeer son of Muhammad Iqbal were nominated as
accused. So far as respondent Muhammd Iqbal is concerned he was attributed specific
role of causing injuries with hatchet on the neck of deceased Muhammad Rafiq. Similar
role was assigned to Manzoor Hussain son of Soba Khan as he also caused injuries with
hatchet on the person of the deceased. It is equally important to note that in the F.I.R.
Muhammad Sarwar son of Muzzaffar Khan, Sher Bahadur son of Sultan Bakhsh, Ahmad
Khan son of Lal Khan were shown to be the witnesses of the incident. The Investigating
Officer recorded their statements' on the same day and undisputedly they fully subscribed
to the prosecution case as it was disclosed in the F.I.R. by petitioner Mst. Qudrat Bibi
being herself witness of the incident. Surprisingly no effective steps were taken by the
Investigating Officer to cause arrest of respondent Muhamamd Iqbal and other
co-accused. Contrary to it he started recording statements of witnesses produced by
accused party to prove that Muhammad Iqbal respondent is innocent.

7. A perusal of impugned judgment reveals that Investigating Officer instead of adopting


normal course of investigation to find out as to whether prima facie respondent is
involved in the commission of offence adopted a novel procedure during course whereof
perhaps he had been conducting secret investigation and subsequently started recording
statements of defence witnesses towards 29th December, 2001 towards 2nd June, 2002
with an effort to exonerate the respondent from the commission of the offence and on
basis of such information/evidence so collected by him, he opined that respondent is
innocent and has been falsely involved in the commission of the offence. Such opinion of
the Investigating Officer had been accepted by learned Sessions Judge while considering
the request of the respondent for bail before arrest as well as by the High Court while
declining cancellation of bail on the request of the petitioner. In such view of the matter
first of all it is to be seen whether after having registered the case and collecting
incriminating evidence immediately produced by the complainant side the Investigating
Officer was justified in examining defence witnesses after about 12/13 days of the
incident because first, statement in this behalf was recorded on 29th December, 2001.
Answer to this query could not. Be else except that such attempt was made with a view to
cause serious prejudice to the case of the complainant or prosecution. Even if it is said
that the attempt was made by the Investigating Officer to record statements of the defence
witnesses with ulterior motives it would not be inappropriate. This Court in the case of
Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) has declined to
accept the statements of prosecution witnesses recorded under section 161, Cr.P.C. with
delay unless cogent and convincing explanation is offered, then how it is possible that
ignoring the statements of prosecution witnesses who were examined immediately after
commission of the offence the statements of defence witnesses recorded after about 12/13
days from the date of incident would be acceptable in order to prima facie form opinion
at the investigating stage that the respondent is not involved in the commission of the
offence. As it has been observed hereinabove that after 29 th December, 2001 the
Investigating Officer had been continuously examining witnesses by procuring their
attendance through loudspeaker of the mosque and in this way successfully arranged a
good number of persons against the prosecution and in, favour of defence to the effect
that the respondent is not involved in the commission of the offence. It would not be out
of context to note here that when an accused is charged for capital offence it is not
difficult for him to produce a good number of witnesses in his favour to show that he is
not involved in the case. But this procedure is not akin either to any provision of Criminal
Procedure Code or Police Rules, rather it reflects about the conduct of the Investigating
Officer who instead of completing investigation within the stipulated period as prescribed
under section 173(1), Cr.P.C. and submit interim or final challan had started justify with
ulterior motives that the respondent is not involved in the commission of offence. Be that
as it may, this Court in the case of Manzoor and 4 others v. The State (PLD 1972 SC 81)
has held that ipsi dixit opinion of the Investigating Officer cannot be accepted to
exonerate the accused from the commission of the offence. Surprisingly learned High
Court as well as Sessions Judge ignoring the law laid down in this reported case accepted
the opinion of the Investigating Officer expressed by him in favour of respondent.

8. A perusal of record indicates that respondent did not fulfil the condition laid down by
this Court in the case of Muhammad Safdar and others v. The State (1983 SCMR 645)
and Ajmal Khan v. Liaquat Hayat and another (PLD 1998 SC 97). In these judgments this
Court prominently has pointed out that concession of bail before arrest is granted to an
accused if it is established that his involvement is based on mala fide by the prosecution.
Admittedly no mala fide has been prima facie established against petitioner to involve the
respondent alongwith others to be the accused for the commission of the offence.
Muhammad Rafiq deceased is brother of petitioner Mst. Qudrat Bibi, therefore, she could
not possibly involve the respondent falsely in the commission of the offence because how
it is possible that a sister who has seen happening of incident of murder of her brother in
her presence would allow the real culprit to escape and will falsely involve some one else
in his place. Even otherwise phenomena of substitution is very rare in this part of the
country. In view of above discussion we are of the opinion that at a stage of admitting to
an accused on bail the Court should not stamp the prosecution witnesses who have
recorded their statements promptly to be false witnesses and accept the statements of
defence witnesses whose statements are recorded after considerable period by the
Investigating Officer from the happening of the incident to conclude that the respondent
is innocent. Therefore, the reasons prevailed upon learned High Court as well as Sessions
Judge, Chakwal are not acceptable being contrary to the principle of law laid down by
this Court as it has been pointed out hereinabove.

9. Learned counsel for respondent contended that once an accused has been admitted to
bail and the challan of the case has been submitted, then concession of bail normally is
not withdrawn. In support of his contention he relied upon Muhammad Sadik and others
v. The State (1980 SCMR 203) and Allah Ditta and others v. The State (1990 SCMR
307). These judgments are not helpful to him because Ghulam Ali, Sub-Inspector, Acting
S.H.O. who produced the record categorically made statement at the bar that so fair
challan has not been submitted in the Court and it is lying on the file of District Attorney.
He also made reference to the case of Razi Khan v. Muhammad Mushtaq and another
(1996 SCMR 984). There is no cavil with the proposition of law discussed therein that
strong and exceptional grounds would be required for cancellation of bail. In our opinion
in view of above discussion there are strong and exceptional grounds available on record
to warrant cancellation of bail, therefore, this judgment has not rendered any help to the
learned counsel for the respondent. He further relied upon the judgment of Muhammad
Hussain v. State (1996 SCMR 73). In our opinion the facts noted in this judgment are
distinguishable from the facts of the case in hand. In the instant case an overt act of
causing injury with hatchet blow has been attributed to the respondent which gets
corroboration from the medical evidence, therefore, the rule laid down in this judgment is
of no help to the learned counsel.

10. We have noted with great concern that learned High Court has made categoric
directions to the Investigating Officer for submission of challan but so far challan has not
been submitted as stated by Ghulam Ali, S.-I. meaning thereby that Investigating Officer
Jawwad Akram, Inspector has not only defied the direction of High Court but of this
Court as well because it has been held in the case of Hakim Mumtaz Ahmad v. The State
(PLD 2002 SC 590) that under section 173(5), Cr.P.C. challan is to be submitted within
stipulated time of 14 days and a copy of this judgment has also been circulated to all the
Inspectors-General of Police with 'X1 view to issue directions to their subordinates to
submit challan within the stipulated period but it is not known that how the Investigating
Officer had not submitted challan in this case so far. Therefore, we direct
Inspector-General of Police, Punjab to look into the matter and ensure full
implementation of the directions contained in Hakim Mumtaz's case (ibid) and at the
same time he will initiate departmental proceedings against the investigating officer
Jawwad Akram as well as Ghulam Ali, S.-I who despite holding charge on behalf of
S.H.O. as per his admission has not complied with the directions of the High Court as
well as this Court and failed to submit challan. The result of the action initiated against
both of them shall also be intimated to the Registrar of this Court for our perusal in
Chambers and action, if any.

The above are the reasonings of our short announced order on 19th July, 2002, which is
reproduced hereinabelow:--

"For the reasons to be recorded later on, petition is converted into appeal and
allowed as a result whereof impugned order dated 10th May, 2002 is set aside and
bail granted to respondent accused is recalled. Mr. Ghulam Ali, S.-I., present in
Court is directed to arrest him immediately so he may face trial. In respect of the
conduct of Investigating Officer and S.-I. for not submitting challan within
stipulated period, separate observations will be made in detail order. "

11. Needless to say that observation made hereinabove while cancelling bail granted to
respondent are tentative in nature, therefore, he will not be precluded from making
request to trial Court for his release on bail after arrest in accordance with law.

N. H. Q./Q-12/S Pre-arrest bail cancelled