' ROOH-UL-AMIN KHAN, J.---Being unsuccessful before the learned Judge Anti-Terrorism Court, Kohat Division Kohat to get the relief of bail, accused-petitioner by way of instant application seeks the same relief from this Court in case F.I.R. No,243, dated 30-8-2009, registered under sections 302/324/353/148/ 149 P.P.C. Read with section 13 of Arms Ordinance, 1965, 5 Explosive Substance Act, 7 Anti-Terrorism Act and 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at Police Station Latamber'District Karak.
2. The prosecution case is that, on the day of incident at 12.45 a.m., Inspector Shafqat along with his driver arrived at Police Station Latamber District Karak and requested the S.H.O. For providing him a guard, as a consequence of his request, Constable Farman Ali was deputed to accompany him.
When they reached in the limits of village Toor Adam, situated at Bannu Kohat main road, a Pickup intentionally collided their car. Some persons deboarded from the said Pickup and started firing at them. The police officials also resorted to firing in their self-defence. As a result of cross-firing, Inspector Muhammad Shafqat, his drivers and two assailants were hit and died on the spot while Farman Ali Constable sustained injury. The damaged vehicle and officials arms and ammunitions were allegedly taken by the remaining assailants. Injured Constable Farman Ali reported the occurrence to Muhammad Rahim, A.S.-L on the basis of which, F.I.R. Mentioned above was registered.
3. The bare reading of the F.I.R. Reveals that nobody has been nominated as accused directly by the complainant. During investigation, five persons namely Anwar Khan son of Noor Ali Khan, Dilawar Khan son of Ramdad Khan, Rifatullah son of Gul Shahid Khan, Shakeedullah son of Sherin Gul and Muhibullah son of Adam Khan, were found involved in the case, out of whom, former two were tried after their arrest and acquitted by the Judge Anti-Terrorism Court Kohat vide judgment dated 22-7-2010, while rest of the accused are still fugitive from law. I searched out the entire record from cover to cover, but could not find petitioner's name as accused. Even he has not been arrested by the local police in this case. It is manifest from the record that he is behind the bar in certain other cases, but in the instant one he has neither been nominated/charged nor arrested.
4. Sections 496 to 502 (Chapter XXXIX of Criminal Procedure Code, 1898), deal with bail mattes of an accused involved in bailable or non-bailable offences. Section 496, Cr.P.C., provides that when any person other than a person accused of a non-bailable offence is "arrested or detained" without warrant by an officer Incharge 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. Similarly, section 497, Cr.P.C.
Has been couched in the following words:-- ' When any person accused of non-bailable offence is "arrested or detained" without warrant by an officer-in-charge of a police station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years....].
' Likewise, section 498 of the Code ibid, provides remedy of protective/pre-arrest A bail to a person implicated for commission of an offence on the basis of mala fide for ulterior motive, and he apprehends his arrest on the hand of local police.
5. The bare reading of the sections ibid, reveals that before entertaining the bail application, the Court has to see, firstly, that whether the person accused seeking bail, is implicated/nominated or charged for the commission of a bailable or non-bailable offence. Secondly, whether he has been arrested or detained or in custody of police. And, thirdly, whether he feels apprehensions of his arrest at the hands of police in some case. Determination of all these ingredients for the court, are sine qua non while entertaining bail applications of accused person. From the above, it is manifest that before seeking relief under Chapter (XXXIX) section 496 to 502 of the Code, petitioner must satisfy the two tests i.e, "charge for an offence" and his "arrest in a criminal case".
6. Where conflict between the Police powers to restrict the liberty of a person arises, the concept of bail emerges and it is the responsibility of the State to protect the right of liberty of citizens being guardian of their fundamental rights. Conceptually "bail" means to procure, release of one, charged with an offence by ensuring his future appearance in Court and compelling him to remain within the hands of the court through sureties. It is the release of person from the custody of police and delivery into the hands of sureties who undertake to produce him in Court, whenever, required to do so. If a person is not in the detainment of police, and his attendance is not required to the Court, there is no need to burden the sureties for procurement of attendance of such person. Bail avoids punishing someone in advance and ensures liberty, until; a case is duly enquired into and adjudged. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, under Article 4 of the Constitution of the Islamic Republic of Pakistan 1973. It has been categorically mentioned under Sub-Article (2)(a) of Article 4 that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Likewise, Article 10 is meant to provide safeguard to every person against arbitrary arrest or detention. Every person, who is arrested and detained in custody shall be produced before the Magistrate within 24 hours and detention beyond the prescribed time, would be in violation and contravention of the Constitution. In the instant case, the petitioner is neither charged nor taken into custody by the local police or any other authority. Thus, his prayer for his release on bail would not be entertainable. It is therefore, the Judge Anti-Terrorism Court, Kohat Division Kohat vide order dated 27-3-2013, has not dismissed the bail application of the petitioner on merits. As manifest from the order, it was observed by the Anti-Terrorism Court, that the accused-petitioner is involved in various cases of different districts, who is presently confined in Central Jail Bannu in these cases, but he has not been shown arrested in the instant case, as yet.
Learned counsel for the petitioner was confronted with the situation, but he could not convince this court qua arrest of the accused-petitioner in this case.
7. Section 498-A, Cr.P.C. Has been inserted in the Code which is a disabling section, whereby the Court has been unauthorized to release a person on bail or direct him to be admitted to bail, who is not in custody or is not present in court or against whom no case stands registered for the time being. Order for the release of a person on bail, or such direction shall be effective only in respect of the case that stands registered and specified in the bail granting order. Nothing in sections 496, 497 and 498, Cr.P.C. Authorized the court to release on bail or direct admission to bail of any person, who is not in custody or against whom no case is registered so far. In the instant'case, as mentioned above, the learned counsel for the petitioner failed to show the implication of the petitioner or his arrest or detention in the case in hand. Thus, no question of release of the petitioner on bail arises. After minute scrutiny of the entire record, this court could not find any thing in black and white to show arrest or implication of the accused-petitioner in the case in hand.
' Thus, in the circumstances, any decision on the application of the accused-petitioner, in absence of his arrest, would be a step not justified in law. Consequently, I, without touching the merits of the case, dismiss this petition. However, the petitioner would be at liberty to seek the same relief, after his arrest in the case.