MUHAMMAD YAWAR ALI, J.---Through this petition filed under section 498, Cr.P.C. The petitioner, Muhammad Irshad seeks pre-arrest bail in FIR No.651/2013 dated 2-$-2013 for an offence under section 489-F, P.P.C. Registered at Police Station A-Division (MPS) District Sheikhupura.
2. The learned counsel for the petitioner submits that the FIR has been lodged with an inordinate delay, the occurrence is stated to have taken place on 27-6-2013 whereas the FIR was lodged on 2- 8-2013 for which no plausible explanation is forthcoming. Civil litigation between the parties qua the dispute in hand is pending adjudication before a Civil Court at Gujranwala. The cheque as referred to in the FIR was issued as a measure of guarantee and not in order to discharge an existing financial obligation. The petitioner has paid a sum of Rs.69,00,000 to the complainant out of the outstanding amount. The petitioner has been charged with an offence which does not fall within the Prohibitory Clause of section 497, Cr.P.C. Hence he is entitled to the grant of pre-arrest bail.
3. The learned District Public Prosecutor and the learned counsel for the complainant have opposed this petition by submitting that the petitioner has been named in the FIR and a specific role has been attributed to him. The petitioner has been found to be guilty during the investigation which has taken place. There is no mala fide on the part of the complainant to have lodged a false and frivolous criminal case against the petitioner.
4. It is trite that an accused cannot claim pre-arrest bail as of right. The august Supreme Court of Pakistan in Rana Muhammad Arshad v. A Muhammad Rafique and another (PLD 2009 SC 427) has laid down in clear and unequivocal terms that grant of pre-arrest bail is an extra ordinary relief to be granted only in an extra ordinary situation. Pre-arrest bail is not to be used as a substitute or an alternative for post arrest bail. In the absence of FIR being lodged with mala fide intention and ulterior motives and where the conduct of the accused has been contumacious he would not be entitled to the grant of pre-arrest bail.
5. In the instant case the petitioner played hide and seek with the trial court. When the case was first called for hearing the petitioner informed the learned Additional Sessions Judge that his learned counsel would appear shortly. Thereafter the case was called many times but the petitioner and his learned counsel never turned up. This petition is silent as to why the petitioner failed to appear before the Court of first instance when his petition was dismissed. The learned counsel for the petitioner while addressing arguments made no effort to explain as to why the petitioner was not present when the petition was decided.
6. The letter of law with regard to the grant of pre-arrest bail took a different turn when section 498-A, Cr.P.C. Was incorporated in The Code of Criminal Procedure 1898 by Act XIII of 1976. It reads as follows:-- [498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered etc. 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 case stands registered for the time being and an order for the release of a person on bail, or 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.] After the insertion of section 498-A, Cr.P.C. In The Code of Criminal Procedure 1898 no court is authorized to release a person by grant of pre-arrest bail who is not present when his petition is called and heard. After the enactment of section 498-A, Cr.P.C., the physical presence of the accused is not only to be insisted upon purely as a matter of propriety, but is a statutory pre- condition for the grant of pre-arrest bail. Jahanzeb and another v. The State (1999 MLD 1222) and Shabbir and 6 others v. The State (2012 YLR 964) may be read with considerable advantage.
7. It is clearly established that the conduct of the petitioner has been contumacious as he deliberately absented himself from the court on the day his petition seeking pre-arrest bail was to be decided. Keeping in view the law laid down by the august Supreme Court of Pakistan in Rana Muhammad Arshad v. Muhammad. Rafique and another PLD 2009 SC 427) and the effect of section 498-A, Cr.P.C. The petitioner is not entitled to the relief being sought. The act of the petitioner not appearing before the Court of first instance when his petition seeking pre-arrest bail was being heard would have a direct effect on the outcome of this case. The petitioner by not appearing in person before the trial court has disentitled himself for the grant of pre-arrest bail by this Court. Although the petitioner has been charged with an offence which carries a maximum punishment of three years imprisonment and does not fall within the prohibitory clause of section 497, Cr.P.C. He would not be entitled to the grant of pre-arrest bail as of right. The grant of pre- arrest bail to an accused in every case which does not fall within the prohibitory clause of section 497, Cr.P.C. Is not a rule of universal application as each and every case is to be decided on its own facts. Shameel Ahmed v. The State (2009 SCMR 174) may be read with great advantage.The petitioner has been unable to demonstrate that the FIR was lodged by the complainant with mala fide intention and ulterior motives in order to victimize, disgrace or dishonour him.
8. For what has been stated above, this petition stands dismissed. Ad-interim pre-arrest bail earlier allowed to the petitioner vide order dated 16-4-2015 is hereby recalled.