This petition has been moved by the two petitioners who are, amongst others, accused of an offence under section 302/34, P. P. C. In an alleged occurrence of a murder which was reported vide F.
1. R. No. 324 dated 10-12-1981, Police Station Baghbanpura, Lahore.
2. The petitioners had moved an application for bail before arrest on the grounds which were enumerated therein before the learned Additional Sessions Judge, Lahore and the same grounds have practically been repeated before this Court. The learned Additional Sessions Judge by an order dated 22-12-1981 dismissed the bail application on the ground that on account of non- appearance of the accused on that date, the petition bad become incompetent by virtue of provisions of section 498-A, Cr. P. C. The petitioners on that date through their learned counsel had moved an application before the learned Additional Sessions Judge pointing out that the petitioners could not make appearance for the reason that the Court compound had been surrounded by the local and Crimes Branch Police to arrest them and defeat the very proceedings for bail before arrest. According to the learned counsel for the petitioners, the learned trial Court thought it fit to instantly reject this application with the observation that he did not find any substance in this plea taken by the petitioners in their application. The grievance made out is that he ought to have given an opportunity of showing cause against such absence and properly considered their submissions. This position has not been controverted even at the Bar.
3. In a recent decision of a Full Bench of this Court reported as Shabbir Ahmed v. The State P LD 1981 Lah. 599(1) the question of the effect and interpretation of section 498-A as introduced in the Cr. P.
C. In 1976 had come up for consideration in a pre-arrest bail case. The Full Bench of this Court after exhaustive analysis of precedent case-law has inter alia been pleased to enunciate the law as under :- "I am inclined to hold that the presence of the accused as mentioned in section 498-A, Cr. P. C.
Further strengthens the undertaking which the accused and his sureties give to the Court by furnishing bonds under section 499. It seems to be obligatory for the accused to appear in Court on all subsequent dates after prohibitory order of his arrest was passed by the Court on surrender of his person, for, he becomes custodia legis. This has also been observed by S. A. Rehman, J. In Sadiq Ail's care. It is, however, discretionary for the Court to give him a direction not to appear if the Court so chooses. I am also conscious of the fact that the practice, which is brought to the notice of the Bench, is that in certain cases the Sessions Judges lock the doors and get the accused arrested when they come to the conclusion that the accused is not entitled to bail after examining the allegations made by the prosecution. Courts are sanctuaries and the reverence must be shown. It is undesirable that the Police arrests the accused in Court ...............................--- It has been further held in para. 13 of the judgment to the following effect .- , "The absence of the accused for genuine cause has to be taken into consideration by the Court and it should not take hasty steps without affording reasonable opportunity of showing cause of his absence." .
4. There can be no cavil with the well-settled proposition that principle of law laid down by superior Courts are not only to be the guidelines for decisions by the subordinate Courts in cases where those principles are attracted but in fact are in the nature of dictum to be rigidly followed by the said Courts. This principle of law is also recognised by the constitutional provisions embodied in Article 201 of the Constitution of Islamic Republic of Pakistan.
5. In the present case there are allegations and counter-allegations which are for the trial Court to consider. I need not go deeper into merits of the case in view of the order that is proposed to be passed.
6. The learned counsel for the petitioners informs that no pre-arrest bail had been granted by the learned Additional Sessions Judge to the accused on their appearing and surrendering before the Court. This position is not being controverted by the learned counsel appearing on behalf of the complainant. It is, difficult to appreciate, in the circumstances of the case, as to how some of the rigors of section 498-A, Cr. P. C. Had been pressed into service when the case was not being treated as of pre-arrest bail in--asmuch as no pre-arrest bail was granted and the procedure of post arrest bail had been adopted. A further enunciation may advantageously be quoted from the precedent judgment.
"In the matter of bail `ad interim' bail is a misnomer and has fallen in practice. In fact the Court grants pre-arrest bail to a person who appears and surrenders to the jurisdiction of the Court which prohibits the arrest of the accused until it hears the prosecutor, goes into the nature of the charge against him and passes a final order granting or refusing the bail after considering the merits and demerits. The accused becomes custodia legis and during the interregnum the arrest of the petitioner is prohibited on the accused furnishing sureties to the satisfaction of the Court, who have to produce him on the day when the final order of the bail is to be passed. Section 497, Cr. P. C. Lays down certain guidelines for the grant of bail. Under section 498, Cr. P. C., however, the High Court and the Court of Session have unrestricted power to grant bail to any person in any case. The restrictions have, however, been placed on the exercise. Of jurisdiction by the Courts by the addition of section 498-A, Cr. P. C. Which have already been discussed above."
The ratio of precedent Full Bench case is that an accused who avail concession of pre-arrest bail must be present at all subsequent dates including the stage of confirmation of such bail unless it is dispensed with by the Court. Sere is a visible wisdom of law behind this provision which has already been dealt with by the Full Bench of this Court in detail and no further elucidation is called for in the instant case. I have come to the conclusion at there has been no lawful disposal of the petitioner's bail application the learned Additional Sessions Judge who passed a rather sketchy and hasty order. He was bound to give a reasonable opportunity to the petitioners show cause for their absence.
7. This Court has generally followed the practice that bail applications could ordinarily be moved before the trial Courts and practice of approaching the High Court directly has been discouraged.
The High Court prefers to know the views of the trial Court unless an exceptional case is made out.
'This, however, is a matter falling within the judicial discretion of this Court.
8. This case pertains to Lahore and according to the learned counsel investigation is being carried out by the Provincial Crimes Branch whose Headquarters is also at Lahore. The High Court is closed for winter vacation. Therefore, in view of the peculiar circumstances of the case, it seems desirable that petitioners should move the trial Court afresh for the grant of pre-arrest pail. Due to non- observance of law, as already pointed out, there was no awful adjudication of their bail application.
9. Learned counsel for the complainant have stressed that this Court ought to make some observations for-the benefit of the trial Court as to how :o deal with a situation of this kind if it again happens to arise before the trial Court when in seisin of the bail before arrest application of the petitioners. I consider it wholly unnecessary in the present case to express elaborately as regards all the modes and methods which fulfil the requirements of a reasonable opportunity of showing cause to an accused for his absence. As to what are the requirements of a reasonable opportunity to a person to show cause for his absence, the expression is well understood and its requirements elaborately spelt out by the superior Court in a large number of decisions. The procedure to be followed and the requirements laid down, to say the least, are to be in consonance with the rules of natural justice and the Court "should not take hasty steps". In such like cases the Courts are not powerless to discover the truth after a reasonable opportunity and due application of mind to the contentions being raised from either side.
10. In the above view of the matter, I felt inclined to hold that there has been no lawful disposal of the bail application of the petitioners. The petitioner are admitted to pre-arrest bail in this case in the sum of Rs. 25,000 (twenty-five thousand) each with one surety each in the like amount to the satisfaction of Deputy Registrar, Judicial of this Court upto 10th of January, 1982, to enable them to present/persue their 'nail before arrest application before the learned trial Court.
I I. As per request of the learned counsel for the complainant, the rule of caution is reiterated that nothing contained in this order is to be construed or interpreted in any manner for or against the grant of bail before arrest by the trial Court. The trial Court would, indeed, go by the merits of the case. The petitioners shall forthwith join the investigation.
The petition is disposed of accordingly.