This application under section 498, Cr. P. C.; for grant of bail before arrest to the applicant is directly preferred in this Court in spite of the fact that the Court o: Sessions is available here. Mr. Mohd.
Hayat Junejo, the learned counsel for the applicant hardly opened his case when the learned Additional A.-G., raised the preliminary points which are as under :-
(i) That the applicant is not present in this Court as required by section 498-A, Cr. P. C., therefore his application be dismissed.
(ii) That he has not approached the Sessions Court in. The -first instance and no such reasons for not approaching the local Court have been assigned so as to justify this application in this Court directly.
2. Mr. Mohammad Hayat Junejo, the learned counsel for the applicant contends that the applicant was present in the Court on the day when he moved this application and it is not necessary for him to appear on subse--quent dates of hearings unless directed by the Court. In order to support his contention on the first point he has relied upon
(i) 1981 P Cr. L J 788, (ii) PLD 1913 Lah. 874, (iii) 1974 P Cr. L J 482.
For second point he has contended that this Court as well as Sessions Court' have concurrent jurisdiction under section 498, Cr. P. C. Therefore it is trot mandatory to approach the Sessions Court in the first instance. He has placed reliance on:
(i) 1976 SCMR 45 and (ii) 1973 P Cr. L J 873.
The learned counsel for the applicants has also argued on merits of the case also.
3. Mr. Abdul Sattar Shaikh, the learned Addl. A.-G., on the other hand has contended that all the cases cited by the learned counsel for the applicant are distinguishable and they have absolutely no relevancy with this case. He has therefore contended that mere presence at the time of filial of this applicant shall not be considered present in the Court as required by section 498-A, C. P. C. It has also been pointed out by him that section 498-A, Cr. P. C. Came into existence in 1976 and made presence of accused compulsory and bail shall not be granted to him if he is not present in the Court. He has placed reliance on.
(i) 1980 S. C M R 1'50 and (ii) PLD 1980 Pesh. 145.
4. I have carefully considered the contentions of the learned counsel for the applicant as well as State. I have gone through the citations re--ferred to by the learned counsel for the applicant as well as State. In Nazir Ahmad and .5 others v. Mohd. Shah and another the petitioners surrendered and their petition was admitted and interim bail was granted to them. In Moulana Fateh Mohammad v. State, the petitioner surrendered in the Court and got interim bail. Therefore it was held that absence in such an event on subsequent dates of hearing could result in the forfeiture of his bond and the petition was also already admitted. In Sahibzada Ahmad Raza Khan Qusuri and 4 others v. State, the point involved was of the presence of the accused at the time of confirmation of bail as ad interim bail was already granted to them. Therefore absence of the accused in the Court in the above cases was tinder different circumstances. In this case, neither this petition has been- admitted nor any interim bail was granted to the applicant when this application came before my Lord the Chief Justice for the first time on 18th September, 1980. It was filed on 17th September, 1980 and there is nothing on record to show if he was present in the Court when his application came up for hearing and a notice to A.-G: for 20th September, .1980 was ordered. There is no doubt that this Court and the Court of Sessions have concurrent jurisdiction under sec--tion 498, Cr. P. C. There cannot be a fixed rule that a person mint approach the Sessions Court in the first instance before coming to this Court. The circumstances in every case are different. But I strongly feel that some reasonable grounds must exist for not approaching the Sessions Court which are not available in this case. In fact no reason whatsoever has been shown to approach this Court straightaway. In case, every application is directly entertained in this Court as a matter of routine, the jurisdiction of the Sessions Court in that case would become redundant. The applications for bail before arrest can be directly filed in this Court n but of course when strong reasons exist for it. Moreover this Court cannot be a substitute for the Court of Session in matters of pre-arrest bail.
I am of the view that no circumstances exist for the applicant t--o approach this Court directly and the applicant is also not present in this Court as required by section 498-A, Cr. P. C. I do not discuss the merits of the case at this stage and the applicant shall be at liberty to approach the Sessions Court if he so likes. In the result this application is dismissed.