1. ' Petitioner Hazrat Khan with Umra Khan and two others are accused of an offence under section 382, P. P. C. Report against them was lodged by one Jan Muhammad on 6-9-1979. Hazrat Khan and Umra Khan applied for pre-arrest bail to the Court of Sessions at Charsadda on 15-9-1979 and they were allowed ad interim pre-arrest bail on the same date. They were however directed by the learned Additional Sessions Judge to be in attendance on the following date in the matter of confirmation or otherwise of the bail thus allowed to them. It appears that the case could not be taken up until 13th of October 1979 for one reason or the other. On the said date, however, no one appeared on their behalf nor the petitioners were in attendance. Their application was, therefore, dismissed and interim bail granted to them earlier was recalled.
2. ' Both of them thereafter moved this Court for bail before arrest on 22-11-1979. When this application came up for hearing in motion before a learned Judge of this Court on 25-11-1979, Umra Khan was again found absent. Consequently his request for pre-arrest bail was turned down in limine. Petitioner Hazrat Khan was however admitted to interim pre-arrest bail.
3. ' When the matter came up for final hearing before me on 12-1-1980 it was pointed out to the learned counsel for the petitioner that in view of the provisions contained in section 498-A, Cr. P. C.
4. Which provision of law was introduced for the first time by the Code of Criminal Procedure (Amendment) Act, 1976, it was perhaps essential more so when petitioner had been specifically directed by the Additional Sessions Judge to be present on the next date of hearing; that he should have been in attendance and if this was so, then the order of the learned Judge dismissing his application on this account would be unexceptionable and since petitioner was asking for discretionary relief from this Court, therefore, this conduct of his by itself might suffice to disentitle him from the same. Learned counsel were also desired to assist me on the question as to whether where, say, for reasons beyond control of a person, he is unable to attend the Court in a matter like this on the date of hearing, would he be barred from making another application to the same Court for the same purpose and/or the Court would be prevented from entertaining the same afresh. Learned counsel had been requested for a short adjournment to prepare themselves on these points and the matter was, therefore, postponed by consent to 16th instant.
5. ' When the matter was taken up for hearing accordingly, Mr. Mahmood Shah learned counsel for the petitioner submitted that firstly presence of the petitioner at the time of confirmation of his bail was not necessary in view of the law laid down in the case of Sahibzada Ahmad Raza Khan Qasuri and others v. The State (1) and secondly where an application for pre-arrest bail is once admitted by a Court it cannot be dismissed for absence of the petitioner and must be disposed of by the Court on merits. He has placed reliance in this respect on the following cases :-
(1) Begum Silvat Sher Ali v. The State 1973 P Cr. L J 935.
(2) Wall Muhammad v. The State 1977 P Cr. L J 783.
6. ' One could have no cavil with the principle enunciated in the case of Sahibzada Ahmad Raza Qasuri that it is discretionary with the Court, depending upon the facts and circumstances of each case, to insist on the presence of a person at the time of confirmation of anticipatory bail if that person had surrendered and submitted himself before the Court when interim relief was granted to him. Similarly no dispute can possibly be made with the proposition that Superior Courts should not, unless inferior Courts are first moved, ordinarily and in absence of special circumstances, entertain applications for bail, but where a matter has been once admitted, it cannot be dismissed upon such grounds and must be disposed of on merits as laid down in 1973 P Cr. L J 935. But it would be seen that Sahibzada Ahmad Raza Qasuri's case had come up for decision on 6-12-1972 when the provision of section 498-A, Cr. P. C. Was not in the field. This provision of law inserted by section 4 of the Code of Criminal Procedure (Amendment) Act on 19th April 1976, has however changed the position and has left no discretion with the Courts to admit a person to bail unless he is in custody or is present in Court or against whom no case stands registered for the time being.
7. For facility of reference, this section may as well be quoted as under :- "Nothing in section 497 or section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no cases stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction."
(1) 1974 P Cr. L J 482 ' Therefore I think that the learned counsel does not seem to be right in saying that the presence of an accused at the time of confirmation of bail where he was present when interim bail was granted to him is not necessary and should not be insisted upon.
8. ' The other two cases relied upon by the learned counsel also appear to be distinguishable. In these necessity for approaching the inferior Court for bail in the first instance was undoubtedly emphasized and it was clearly laid down that in the absence of extraordinary circumstances, such applications should not be entertained directly by a superior Court having concurrent jurisdiction, but in view of the peculiar circumstances prevailing in those cases it was held that it should not be dismissed once it had been admitted upon that ground only and must be disposed of on merits.
9. The case before me, however, is not a case of that nature. Here the inferior Court had been moved in the first instance but relief was not granted to the petitioner because of his own conduct in remaining away from the Court on the date of confirmation of bail, when even his counsel did not appear. In the circumstances, therefore, to insist that his application must be disposed of on merits, notwithstanding his conduct, merely because he had been allowed earlier interim bail by this Court, in my view, would not be called for. It is no denying the fact that he is asking from this Court a discretionary remedy and it is well settled that in such matters conduct of the person becomes relevant and where he appears to have himself contributed to something against him, the Court can legitimately refuse to extend him such remedy. Besides no argument has been addressed on his behalf as to what prevented him from appearing in the Court of learned Additional Sessions Judge, Charsadda on 13-10-1979. Therefore it may not be wrong to assume that this might not have been for reasons entirely beyond his control. And if this were so, then I am afraid, petitioner would not be entitled to confirmation of his bail.
10. ' Although it was desired that the learned counsel would address me on the question as to whether in circumstances where a person is unable, for no avoidable fault of his own, to appear in Court and his application is dismissed on this account, will he be disentitled to apply for bail again or will the Court be prevented for all times to come, when no decision on merits was given by it, to entertain a similar application by the same person again provided he could convince the Court that his absence was unavoidable and un-intentional. But nothing has been said on this behalf.
11. Personally I am of the view that the Court would not be rendered powerless to entertain a similar application by the same person afresh if it could be persuaded that the absence of that person at the time of confirmation in the earlier application was for reasons beyond his control. In this view of the matter I am not inclined to confirm ad interim bail earlier granted to the petitioner. His application is therefore dismissed and the order granting him ad interim bail is recalled.
12. ' I have, however, refrained from making any comments with regard to the merits of the case of the petitioner lest he is prejudiced if he chooses to make another attempt for pre-arrest bail in the Court of inferior jurisdiction.