TARIQ SALEEM SHEIKH, J. This revision petition under Sections 439/435 Cr.P.C. is directed against order dated 27.6.2020 passed by the learned Additional Sessions Judge, Multan.
2. Brief facts giving rise to this petition are that Respondent No.2 lodged FIR No.1052/2019 dated 27.10.2019 against the Petitioner at Police Station Baha-ud-Din Zakariya, Multan, for an offence under Section 489-F PPC. On 18.5.2020, the Petitioner applied for pre-arrest bail in the Sessions Court, Multan. His bail application was placed before Mr. Khizer Hayat Sahu, Additional Sessions Judge, who issued notice to the State and Respondent No.2 for 10.6.2020 and in the meanwhile admitted him to interim bail. Record shows that on 18.5.2020 the Petitioner and his counsel attended the Court but the case could not proceed as the learned Presiding Officer had been transferred. The Duty Judge adjourned it to 27.6.2020. On the said date the Petitioner did not put up appearance whereupon the new judge, who had assumed charge by that time, dismissed his application for non-prosecution.
Aggrieved, the Petitioner has filed this petition.
3. The learned counsel for the Petitioner contended that the Petitioner's absence on 27.6.2020 was not wilful.
According to him, the police illegally raided his house at dawn that day and took him to an unknown place where he subsequently learnt that they had arreste d him in FIR No.374/2020, another case got registered by Respondent No.2 against him. His advocate duly brought this fact to the notice of the learned Additional Sessions Judge through a written application but he ignored it. The learned counsel further contended that under the law an application for pre-arrest bail could not be dismissed for non-prosecution. The learned Additional Sessions Judge should have either adjourned the Petitioner's application or decided it on merits. In the peculiar circumstances of the case, he argued, the impugned order was not only illegal but harsh and unjustified.
4. The learned Deputy Prosecutor Genera l and the learned counsel for Respondent No.2 vehemently opposed this petition and contended that the impugned order was legal and no exception could be taken thereto.
5. Arguments heard. Record perused.
6. Chapter XXXIX of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr.P.C."), deals with bails. Section 496 speaks of persons who are accused of bailable offences while Section 497 talks of those who are involved in non-bailable offences. Section 498 makes stipulation regarding fixation of amount of bond and empowers the High Court and the Court of Session to admit a person to bail whether there be an appeal on conviction or not. Section 498-A was introduced by the Code of Criminal Procedure (Amendment) Act (XIII of 1976). It puts curbs on the power of the Court under Sections 497 and 498 Cr.P.C. and restrains it from granting bail to a person who is not in custody or is not present before it or against whom no case is registered for the time being. Sections 499 and 500 deal with bail bonds. Section 501 empowers the Court to order the accused to furnish additional surety where the previous one is found insuf ficient. And finally , Section 502 deals with discharge of sureties.
7. For the purpose of the instant case, Sections 498 and 498-A Cr.P.C. are relevant. I begin with Section 498 which is reproduced hereunder for ready reference:
498. Power to direct admission to bail or reduction of bail. - The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail, or that the bail required by a police-of ficer or Magistrate be reduced.
8. In Jairam Das and others v. King Emperor [ILR (1945) 26 Lah. 57 : AIR (32) 1945 P.C. 94] the Privy Council ruled that Chapter XXXIX of the Code together with Section 426 contains a complete and exhaustive statement of the powers of the High Court to grant bail and it has no inherent power in this regard. In this backdrop in Hidayat Ullah Khan v. The Crown (PLD 1949 Lahore 21) a reference was made to a Full Bench of this Court to consider the import of Section 498 and deliver opinion on the question as to whether the High Court could grant any relief, and if so what, to a person seeking an order for bail in anticipation of his arrest for an offence. The principal argument on behalf of the Crown was that when Sections 496 and 497 refer to a person who "appears before court" the reference must be to a person who appears in compliance with a summons issued by the court. Further , the action contemplated by the Code for grant of bail is only the action which has the effect of releasing a person from custody whether actual or threatened. The Hon?ble Full Bench accepted the contention that voluntary appearance of a person before the court does not entitle it to take him into custody for the purpose of exercising the power of granting bail. It is thus reasonable to suppose that power of releasing a person on bail has been provided by the Code in relation to the power given by it for compelling his attendance. However , their Lordships repelled the rest of the contention. Speaking for the Court, Cornelius, J. wrote: "The use of these words ["the High Court may, in any case, direct that any person be admitted to bail"] in section 498, which is clearly a section intended to supplement and complete the provisions of sections 496 and 497 justifies the belief that the power given includes a power to revise the exercise of discretion by public officers and courts of first instance where bail has been refused, in the different classes of cases specified in section 497, in regard to the question whether or not a person shall be released on a bail (the discretion to fix the amount of bail which falls to be exercised under sections 496 and 497 is revisable, but for the purposes of reduction only, as seen above). But the words employed are wider than are necessary merely for giving a revisionary jurisdiction to the High Court over such acts of police officers and Magistrates; they include clearly a power in the High Court to grant bail to persons to whom the police and the courts of first instance are not permitted by section 497 to grant bail, namely persons who are not under sixteen years of age or of the female sex or sick or infirm, against whom there appears a reasonable ground for believing that they have been guilty of offence punishable with death or transportation for life. And finally , there is significance to be attached to the use of the expression "direct that any person be admitted to bail' which must be distinguished from the expression used elsewhere in sections 496 and 497, viz., "released on bail". It must be supposed that by these two different expressions, different things are meant..."
"As I have pointed out above, the High Court has power to 'direct that any person be admitted to bail', and giving these words their full weight, I see no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of an inferior court or a police officer, but also includes a power to give directions that persons should be admitted to bail who are not in custody ."
9. The Hon'ble Full Bench not only answ ered the question referred to it in the affirmative but also laid down the following fundamentals for grant of pre-arrest bail: "[I]n a proper case, the High Court has power under section 498 Criminal Procedure Code to make an order that a person, who is suspected of an offence for which he may be arrested by a police officer or a Court, shall be admitted to bail. The exercise of this power should, however , be confined to case s in which, not only good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability , be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives, and with the object of injuring the petitioner , or that the petitioner would in such an eventuality suf fer irreparable harm."
10. In The Crown v. Khushi Muhammad (PLD 1953 FC 170) the Federal Court held that although the Legislature had employed different terminologies in sections 497 and 498 (as observed by the High Court in Hidayat Ullah Khan's case, supra ), they were synonymous. It further held that the concept of "bail" postulates release of a person from the custody of police and delivery into the hands of the sureties who undertake to produce him in Court whenever required. Section 498 Cr.P.C. does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX. Thus, the said section cannot be invoked to admit a person to bail unless he is in actual custody or subject to some form of imminently threatened restraint under a warrant of arrest issued against him. This provision, however , does not apply to convicts and it cannot be invoked to release them. The powers of the High Court under Section 498 are not merely revisional but are concurrent with those of the court of first instance.
11. The Hon'ble Supreme Court of Pakistan considered the above-mentioned judgment in Sadiq Ali v. The State (PLD 1966 SC 589) and observed that on principle there seemed no difference between the case of a person against whom a warrant of arrest had been issued and the one whose arrest at the hands of the police, without a warrant, was imminent unless the court intervened. It was only the certainty of arrest in the case of a warrant that could be accepted as the foundation for the exercise of the power of bail and the inevitability of such arrest might be equated with actual restraint or custody . Accordingly , the apex Court ruled: "[T]he rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person, whose arrest, on a criminal charge by the police, without a warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of bail. Such an interpretation, in my humble judgment, is consistent with the language of sections 496 and 497 of the Code and involves no widening of the scope of the power given by section 498 as compared with its extent under the former sections. Indeed, such an order might be eminently called for, in certain circumstances of grave character , affecting the liberty of a citizen. Indiscriminate grant of bail, however , merely on the request of a person, who appears in Court and thereby surrenders himself to that Court, without the other , condition s for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced."
12. Sadiq Ali's case approved the principles for grant of pre arrest bail formulate d in Hidayat Ullah Khan's case, supra.
13. A five-member larger Bench of the Hon'ble Supreme Court once again examined the scope of Section 498 Cr.P.C. in Muhammad Ayub v. Muhammad Yaqub and another (PLD 1966 SC 1003 ). The majority held that Section 498 has two limitations: first, it applies only to accused persons and not to those convicted of an offence, and second, in non-bailable offences it is confined to the category of persons visualized by Section 497. Under Sections 496 and 497 the court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court by the police or by some other authority . On the other hand, Section 498 would be called in aid, before the Court of Session and the High Court, even where the court is not directly seized of the proceedings in question and where arrest has not been actually made so far but anticipatory bail is asked for, e.g., where the case is still at a stage of investigation by the police or is pending in a subordinate court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other courts would be excluded from its scope.
14. In 1976 the Legislature in its wisdom enacted Act XIII of 1976 and introduced Section 498-A in the Code which reads as under: 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 registe red against him and is specified in the order or direction.
15. On 19.8.1980, FIR No.209 under Sections 452/354 PPC was registered at Police Station Saddar , Khanpur , in which Shabbir Ahmad moved an applica tion for pre-arrest bail before the Additional Sessions Judge, Rahimyar Khan, which was dismissed on merits and on account of his absence from the court. Shabbir Ahmad approached this Court and was admitted to interim pre-arrest bail. Relying on Maulana Fateh Muhammad v. The State (PLD 1973 Lahore 874), his counsel contended that it was not necessary for the accused to be present in the court on the date of confirmation of bail. Considering it a question of public importance the learned Single Judge referred it to a Larger Bench. During the arguments before the Division Bench a further question arose as to whether there was any distinction between pre-arrest bail and post-arrest bail. In order to determine both the issues a Full Bench was constituted. After examining the relevant case-law and Section 498-A Cr.P.C. their Lordships laid down the following principles that are reported in the case cited as Shabbir Ahmad v . The State (PLD 1981 Lahore 599):
(1) Section 498 Cr.P.C. is neither ancillary nor subsidiary to sections 496 and 497 but is an independent section which conferred uncontrolled power on the High Court and the Court of Session to grant bail to a person. The conditions laid down in Section 497 Cr.P.C. could at the best be guidelines for grant of bail. However , Section 498- A Cr.P.C. has placed fetters on the exercise of jurisdiction. Bail cannot be granted to a person who is not in custody or not present in court or against whom no case is registered. Further , the bail order is effective only to the extent of the case in which it is passed.
(2) The term "custody" is not restricted to physical custody . If a person is in restraint or apprehends arrest in a case which is cognizable, his custody is intended by the police officer who can arrest him without warrant. Hence, there is an obvious distinction between pre-arrest bail and bail after arrest.
(3) The criteria laid down in Hidayat Ullah Khan' s case has not undergone any change so far. The three principles laid down therein should be strictly followed. The courts should grant pre-arrest bail sparingly and only in appropriate cases. An unstinting exercise of this power embarrasses the prosecution in investigation - as is the general complaint. Balance has to be kept and each case has to be dealt with on its own merits. Every murderer , burglar , dacoit or a person accused of offences disturbing the tranquility of the State and destroying the peaceful living of citizens should not automatically get pre-arrest bail on his mere asking. At the same time, the courts being guardians of the liberty of citizens must protect them against abuse of power by the police.
(4) Section 499 Cr.P.C. contemplates release of an accused on his own bond for such sum of money as the police officer or the court thinks sufficient or against the surety of one or more person s. Form of bond is provided in Schedule V. Perusal of the bond shows that the accused undertakes to appear to answer the charge on every date of hearing until otherwise directed by the court. In case of default the bond is forfeited. Similarly , the surety gives an undertaking that the accused shall attend and continue to attend the court until it directs otherwise and the bond is forfeited if he defaults.
(5) The presence of the accused in court for the grant of bail is mandatory by virtue of Section 498-A Cr.P.C. "Ad- interim bail" is a misnomer and there is no such concept in the Code. The court passes a prohibitory order in the nature of injunction directing the prosecu tion agency not to arrest the accused till the allegation against him is examined by it. No doubt the accused has to furnish bond for his appearance on the date on which the order of release on bail has to be passed after considering the allegations made against him. There is no force in the argument that the presence of the accused on the day when he surrenders himself before the court for the grant of interim order is enough.
(6) 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 is passed by the court on surrender of his person because he becomes custodia legis. This has also been observed by S. A. Rahman, J. in Sadiq Ali's case . However , the court may in its discretion dispense with his attendance.
(7) In certain cases the Sessions Judges lock the doors and get the accused arrested when they examine the allegations levelled by the prosecution and come to the conclusion that the accused is not entitled to bail. Courts are sanctuaries so reverence must be shown. It is undesirable that the police arrest the accused in Court. In Suleman Khan and another v. The State (1975 SCMR 131), the august Supreme Court set aside the order of the High Court to take the accused in custody after it refused to confirm his anticipator y bail. It is also undesirable that police arrest the accused in the court. However , they can request the court for permission to arrest him which may be given.
(8) The absence of the accused for a genuine cause has to be taken into consideration by the court and it should not take hasty steps without af fording a reasonable opportunity of showing cause for his absence.
16. The Hon'ble Full Bench ruled that the dictum laid down in Maulana Fateh Muhammad v. The State (PLD 1973 Lahore 874) and Abdul Hamid Khan Jatoi v. The State (1973 PCr.LJ 1032) had lost sanctity owing to the insertion of Section 498-A in the Code. The first case held that presence of the accused-petitioner was necessary only on the first date of hearing and not thereafter unless the court directed otherwise and that once a petition was admitted and notice was given it had to be decided on merits. In the second one, the court granted interim bail to the petitioner in his absence without his formal surrender because the police made it impossible for him to enter the court premises which was heavily guarded. Their Lordships overruled Subedar Abdul Rehman and another v.
The State (1981 PCr.LJ 61) which held that there was no justification for insisting that the accused-petitioner should appear on the date of confirmation of bail and the matter be decided on merits. However , they approved Umra Khan and another v. The State (PLD 1980 Peshawar 145) which held that after the insertion of Section 498-A Cr.P.C. the court had no discretion to admit a person to bail if he was not in custody or present before it.
17. Shabbir Ahmad's case , supra , was cited by the Hon'ble Supreme Court in Murad Khan v. Fazal-e-Subhan and another ( PLD 1983 SC 82 ) without any criticism.
18. The Sindh High Court has interpreted Sections 498 & 498-A Cr.P.C. in the same way. In Jahanzeb and another v. The State (1999 MLD 1222 ) a learned Division Bench held that only a person who surrenders before the Court can avail the privilege of pre-arrest bail. After the enactment of Section 498-A physical presence of the applicant in the court may not only be insisted upon as a matter of judicial propriety but also for the reason that it is a statutory prerequisite for the exercise of the power to grant bail.
19. From the above discourse it is evident that bail before arrest is an extraord inary relief which is granted in special circumstances to protect innocent persons against victimization through abuse of law for ulterior motives.
However , it cannot be afforded to a person against whom no case is registered. The principles laid down in Hidayat Ullah Khan's case should be strictly followed. There is no concept of blanket bail and the order is effective only to the extent of the case in which it is passed. Pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail. The accused person must surrender before the court and physically appear not only at the time of first hearing but also on all subsequent dates till his application is decided unless his attendance is dispensed with.
Where the accused is absent for a genuine cause the court must show indulgence. However , the question remains as to whether the court is obligated to decide the application on merits even if the accused does not appear .
20. A learned Single Judge of the Peshawar High Court stated obiter in Umra Khan's case, supra , that an application for pre-arrest bail can be dismissed if the accused does not turn up on the date of its confirmation but the court may entertain his second application if he persuades it that his absence was for reasons beyond his control. Shabbir Ahmad's case does not specifically address this issue but one may argue that the Hon'ble Full1 2 Bench intended to lay down the same principle when it overruled the cases of Maulana Fateh Muhammad and Abdul Hamid Khan Jatoi adumbrated above. In contrast, barring a few exceptions , in a series of cases, including Muhammad Shafi v. The State (1989 PCr.LJ 1746), Mst. Salima Bibi and others v. The State (2000 PCr.LJ 138), Abdul Rashid and 3 others v. The State (2006 YLR 2058 ), and Muhammad Yaseen alias Yasee n and others v. The State (2010 YLR 2334 ), the courts held that once a pre-arrest bail application is admitted and notice is given to the State it should be decided on merits even if the accused fails to put up appearance. The august Supreme Court's decision in Muhammad Saleem Akhtar v . The State ( PLD 1996 SC 735 ) also supports this view .
21. The policy of law is that bail petitions should be decided within the shortest possible time. Nevertheless, in a number of cases the accused applying for pre-arrest bail first use dilatory tactics to gain time and then deliberately absent themselves when they feel that the presiding officer would not allow any more adjournments. If their bail application is dismissed for non-prosecution, they start afresh in sheer abuse of the process of law. This cannot be permitted. The apex Court also deprecated such practice in Mukhtar Ahmad v. The State and others (2016 SCMR 2064 ). Therefore, once a pre-arrest bail application is admitted it must be decided on merits in all eventualities.
22. Now coming to the instant case, the Petitioner's contention is that his absence on 27.6.2020 was not wilful.
According to him, a huge police contingent picked him up from his house at dawn that day at the instance of Respondent No.2 and took him to an unkn own place. The Petitioner's counsel duly brought this fact to the notice of the learned Additional Sessions Judge through a written application who issued a notice thereon to the State and Respondent No.2 but with another strok e of pen dismissed his bail petition for non-prosecution. The learned Additional Sessions Judge's order dated 27.6.2020 (which is impugned herein) is not sustainable for two reasons: first, he did not wait for the reply of the State on the Petitioner's miscellaneous application which explained reasons for his non-appearance. Secondly , he was obliged to decide the Petitioner's bail application on merits and could not dismiss it for non-prosecution.
23. In view of the foregoing, through a short order of even date I have accepted this petition and set aside the impugned order dated 27.6.2020 with a direction that the Petitioner's application for pre-arrest bail shall be deemed to be pending before the learned Additional Sessions Judge, Multan, and he shall decide the same in accordance with law . Above are the reasons for that short order . . On the same analogy , with respect, I may observe that Sahibzada Ahmad Raza Khan Qasuri and 4 others v.
The State (1974 PCr .LJ 482) also does not hold the field any more. . For this reference may usefully be made to Tahir Hussain and another v. The State (1994 PCr.LJ 2490) and Muhammad Khan and 4 others v . The State ( 2000 YLR 1334 ). . See Zargam Khan and 6 others v . The State ( 2007 YLR 1582 ). . It is pertinent to note that none of these cases referred to Shabbir Ahmad v . The State (PLD 1981 Lah. 599).