Through this single consolidated order,
(i) Crl. Revision No.54056/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.",
(ii) Crl. Revision No.54326/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.",
(iii) Crl. Revision No.54327/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.",
(iv) Crl. Revision No.54328/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.",
(v) Crl. Revision No.54329/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.",
(vi) Crl. Revision No.54330/ 2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc." and
(vii) Crl. Revision No.54331/2023 titled as "Imran Ahmad Khan Niazi versus Special Judge (Anti- Terrorism Court), Lahore, etc.", all filed by Imran Ahmad Khan Niazi (petitioner), are being decided because one and the same question is involved in said petitions with the identical prayer for setting-aside the orders dated: 11.08.2023 of similar nature passed by learned Special Judge, Anti- Terrorism Court No.III, Lahore whereby applications for exemption from personal attendance and applications for pre-arrest bail filed by the petitioner in the cases, have been dismissed.
2. i) Brief facts in Crl. Revision No.54056/2023 are that on 25.03.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.410/2023 dated: 14.03.2023 registered under Sections: 324 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Race Course, Lahore; he appeared before the court on the same day i.e. 25.03.2023, was granted ad-interim pre- arrest bail by learned Special Judge, Anti-Terrorism Court No.III, Lahore and application was adjourned for 04.04.2023; on said date i.e. 04.04.2023, petitioner again appeared before the court however application was adjourned for 13.04.2023 as learned Judge was on leave; on 13.04.2023, petitioner did not appear before the court at the time when his application was called and his learned counsel requested for some wait so that petitioner may approach the court, however, at the same time, it was stated by him that level of threat to the petitioner is so high that he could be targeted at any time on the way to the court and while discussing circumstances, learned Judge allowed attendance of the petitioner to be obtained through video link and in said regard, two officials of the court staff were sent to the place where petitioner was present and after establishing video link, his attendance was obtained/marked while using modern device and application was adjourned for 04.05.2023; on 04.05.2023, application was filed before the court for dispensing with the personal attendance of the petitioner on the ground that he has gone to Islamabad for appearance before Supreme Court of Pakistan and copy of the Daily Cause List was annexed with the same, upon which, personal appearance of the petitioner was dispensed with and application was adjourned to 16.05.2023, then, on 16.05.2023, application for dispensation of personal attendance of the petitioner was filed whereupon, his personal attendance was exempted and application was adjourned for 19.05.2023; relevant portion of said order is hereby reproduced:- "Learned counsels for petitioner submitted an application for dispensation of personal attendance of accused/petitioner Imran Ahmad Khan Niazi on the grounds that personnels/workers of the rival political parties have assembled on the way to this court and due to this fact, there is apprehension of law and order as well as danger to the life of petitioner Imran Ahmad Khan Niazi.
Although it is discretion of the court, however, it is to be exercised judicially. Propriety demands that petitioner shall appear in person before the court, however, when there is apprehension/danger to the life of petitioner then rule of propriety lacks its weight. It is further observed that when principle of propriety and rights of the accused/petitioners are in contradiction, rights of the accused shall prevail, as is held by the Hon'ble superior courts of the country.
In view of this, the application for dispensation of personal attendance of accused/petitioner Imran Ahmad Khan Niazi is accepted and his personal attendance is dispensed with for today only. Now the case is fixed for 19.05.2023 for arguments upon the petition."
On 19.05.2023, arguments of learned counsel for the petitioner were heard and application was adjourned to 02.06.2023 for arguments of learned Deputy Prosecutor General as learned Judge left the court premises due to sudden demise of his sister-in-law; on 02.06.2023, petitioner was present before the court however on the request of learned Deputy Prosecutor General, application was adjourned to 13.06.2023; on said date i.e. 13.06.2023, application was filed on behalf of the petitioner for exemption of his personal attendance before the court upon which his personal appearance was exempted and application was adjourned to 27.06.2023, on which date, petitioner appeared before the court on ad-interim pre-arrest bail however on the request of learned Deputy Prosecutor General, application was adjourned to 07.07.2023; on 07.07.2023, petitioner was present on ad-interim pre-arrest bail however again on the request of learned Deputy Prosecutor General, application was adjourned to 21.07.2023; on said date i.e. 21.07.2023, petitioner again appeared on ad-interim pre-arrest bail however learned Judge was on leave and application was adjourned to 08.08.2023, on which date, application was filed on behalf of the petitioner for exemption from personal attendance on the ground that he is in prison, unable to attend the court, on said application, notice was issued to the prosecution and learned counsel for the petitioner was directed to argue upon point of maintainability of said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, learned counsel for the petitioner submitted before the court that since petitioner is in prison, therefore, it is beyond his control to appear before the court and he requested for issuance of order of production of the petitioner from prison, however, learned Special Judge, Anti-Terrorism Court No.III, Lahore dismissed the application for exemption of personal attendance of the petitioner being not maintainable and also dismissed the application for pre-arrest bail filed by the petitioner on account of non-appearance/non- prosecution vide order dated: 11.08.2023, which has been impugned herein through this revision petition and herein after to be referred as "impugned order". ii) Brief facts in Crl. Revision No.54326/2023 are that on 19.05.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.96/2023 dated: 10.05.2023 registered under Sections: 302 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Sarwar Road, Lahore; he appeared before the court on 19.05.2023, was granted ad-interim pre-arrest bail and application was adjourned for 02.06.2023, on which date, his application was adjourned to 13.06.2023 and thereafter for 27.06.2023, 07.07.2023, 21.07.2023 and 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of his personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner in aforementioned case was also dismissed on account of non-appearance/non- prosecution vide order dated: 11.08.2023, which has been impugned herein through this revision petition and herein after to be referred as "impugned order". iii) Brief facts in Crl. Revision No.54327/2023 are that on 25.03.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.388/2023 dated: 08.03.2023 registered under Sections: 302 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Race Course, Lahore; he appeared before the court on 25.03.2023, was granted ad-interim pre-arrest bail and application was adjourned for 04.04.2023, on which date, his application was adjourned to 13.04.2023; on said date i.e. 13.04.2023, attendance of the petitioner was marked through video link and application was adjourned for 04.05.2023, 16.05.2023, 19.05.2023, 02.06.2023, 13.06.2023, 27.06.2023, 07.07.2023, 21.07.2023 and 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of his personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner was also dismissed on account of non-appearance/non-prosecution vide order dated: 11.08.2023, which has been impugned herein through this revision petition and herein after to be referred as "impugned order". iv) Brief facts in Crl. Revision No.54328/2023 are that on 21.06.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.1078/2023 dated: 11.05.2023 registered under Sections: 324 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Naseerabad, Lahore; he appeared before the court on 21.06.2023, was granted ad-interim pre-arrest bail and application was adjourned for 07.07.2023, on which date, his application was adjourned to 21.07.2023 and 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner was also dismissed on account of non-appearance/non-prosecution vide order dated: 11.08.2023, which has been impugned through this revision petition and herein after to be referred as "impugned order". v) Brief facts in Crl. Revision No.54329/2023 are that on 19.05.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.1271/2023 dated: 10.05.2023 registered under Sections: 302 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Gulberg, Lahore; he appeared before the court on 19.05.2023, was granted ad-interim pre-arrest bail and application was adjourned for 02.06.2023, on which date, his application was adjourned to 13.06.2023, thereafter, application was adjourned to 27.06.2023, 07.07.2023, 21.07.2023 and 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner was also dismissed on account of non- appearance/non-prosecution vide order dated: 11.08.2023, which has been impugned through this revision petition and herein after to be referred as "impugned order". vi) Brief facts in Crl. Revision No.54330/2023 are that on 19.05.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.768/2023 dated: 10.05.2023 registered under Sections: 324 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 etc. at Police Station: Shadman, Lahore; he appeared before the court on 19.05.2023, was granted ad-interim pre-arrest bail and application was adjourned for 02.06.2023, on which date, his application was adjourned to 13.06.2023, thereafter, application was adjourned to 27.06.2023, 07.07.2023, 21.07.2023 and 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of his personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner was also dismissed on account of non- appearance/non-prosecution vide order dated: 11.08.2023, which has been impugned through this revision petition and herein after to be referred as "impugned order". vii) Brief facts in Crl. Revision No.54331/2023 are that on 21.06.2023, petitioner filed application for grant of pre-arrest bail in case arising out of F.I.R. No.366/2023 dated: 10.05.2023 registered under Sections: 395 etc. PPC and Section: 7 of the Anti-Terrorism Act, 1997 at Police Station: Model Town, Lahore; he appeared before the court on 21.06.2023, was granted ad-interim pre-arrest bail and application was adjourned for 07.07.2023, on which date, his application was adjourned to 21.07.2023, thereafter, application was adjourned to 08.08.2023; on said date i.e. 08.08.2023, application was moved on behalf of the petitioner before the court for exemption of his personal attendance on the ground that he is in prison and unable to attend the court; notice was given by the court to the prosecution on said application and application for pre-arrest bail was adjourned to 11.08.2023; on 11.08.2023, application for exemption of personal attendance of the petitioner was dismissed being not maintainable whereas application for pre-arrest bail filed by the petitioner was also dismissed on account of non-appearance/non-prosecution vide order dated: 11.08.2023, which has been impugned through this revision petition and herein after to be referred as "impugned order".
3. Learned counsel for the petitioner submits that after grant of ad-interim pre arrest bail in aforementioned cases, petitioner was convicted and sentenced in another case titled as "District Election Commissioner, Islamabad versus Imran Khan Niazi" vide judgment dated: 05.08.2023 passed by learned Additional Sessions Judge, Islamabad-West (copy whereof is available at Page No.42 to 71 of Crl. Revision No.54056/2023), hence he was arrested, confined to jail and it was not possible for him to appear of his own before the court on 08.08.2023 and 11.08.2023, therefore, applications were filed for exemption of his personal attendance in aforementioned applications for pre-arrest bail; further adds that petitioner was not arrested in aforementioned cases rather was on ad-interim pre-arrest bail, absence of the petitioner on 08.08.2023 and 11.08.2023 before the court was neither intentional nor wilfull rather reason for said absence was well explained; also adds that Anti-Terrorism Court was under all the obligations to procure attendance of the petitioner in all aforementioned applications for pre-arrest bail and decide the same on merits; further adds that impugned orders (mentioned above) are against the law and facts of the case, therefore, same are not sustainable in the eyes of the law; finally prays for setting-aside all impugned orders (mentioned above). Learned counsel has placed reliance on "SHAZAIB and others versus The STATE" (PLD 2021 Supreme Court 886), judgment dated: 21.09.2023 passed by Division Bench of Islamabad High Court, Islamabad in Criminal Revision No.127-2023 titled as "Imran Ahmad Khan Niazi versus The State, etc." (copy of said judgment is available on the record) and "FARHAN MASOOD KHAN versus STATE etc." {PLJ 2021 Cr.C. (Lahore)
550)}.
4. Learned Prosecutor General assisted by learned Additional Prosecutor General under instructions of police officers/officials (present in court) and after himself going through the record submits that petitioner was joined into investigation in all aforementioned cases wherein investigation has now been completed and petitioner has been found involved in said cases; he has produced written detail in said regard, which has been placed on the record and is also hereby scanned below: - Learned Prosecutor General assisted by learned Additional Prosecutor General while supporting impugned orders further submits that after his conviction and sentence in aforementioned case titled as "District Election Commissioner, Islamabad versus Imran Khan Niazi", petitioner was arrested in said case, sent to jail and was confined in the prison in said case on 08.08.2023 when applications for seeking exemption of his personal attendance before the court were filed on his behalf and even on 11.08.2023, he was confined in jail in said case when aforementioned applications for his personal attendance and applications for pre-arrest bail (mentioned above) were dismissed through impugned orders by learned Special Judge, Anti-Terrorism Court No.III, Lahore. Lastly submits that since petitioner was already convicted in aforementioned case and not present before the court, therefore, there was no occasion for dispensing with his personal attendance, hence, said applications for exemption of his personal attendance before the court and his applications for pre-arrest bail were dismissed in accordance with law. He has placed reliance on the case of "SHAZAIB and others versus The STATE" (mentioned supra) and "MUHAMMAD UMAR FAROOQ SALEEM versus The STATE and another" (2022 PCr.LJ 1525).
On Court's query, learned Prosecutor General assisted by learned Additional Prosecutor General under instructions of police officers/officials (present in court) apprises that petitioner has still not been arrested in the cases subject matter in these petitions.
5. Arguments heard and available record perused.
6. It has been admitted by both the sides that petitioner was on ad-interim pre-arrest bail in aforementioned cases by the order of learned Special Judge, Anti-Terrorism Court No.III, Lahore when he was convicted and sentenced in another case titled as "District Election Commissioner, Islamabad versus Imran Khan Niazi" vide judgment dated: 05.08.2023 passed by learned Additional Sessions Judge, Islamabad-West (mentioned above), taken into custody and confined in the prison in said case; therefore, it was not possible for the petitioner to appear on 08.08.2023 as well as 11.08.2023 before Anti-Terrorism Court, Lahore of his own without intervention/order of said court and even said state of affairs was brought into notice/knowledge of the court through applications filed for exemption from personal appearance on 08.08.2023. It is relevant to mention here that during pendency of said applications for pre-arrest bail filed by the petitioner before said court in these cases, at one stage on 13.04.2023, said court obtained/marked attendance of the petitioner through video-link and in this regard, relevant portion of aforementioned order dated: 13.04.2023 is hereby reproduced: - "Learned counsel for petitioner requested for some wait so that the petitioner may reach the court, however, at the same time it is stated by him that level of threat to the petitioner is so high that he could be targeted at any time on the way to the court. Copies reflecting threats issued by the concerned Agencies are also submitted before the court which are perused and found that there is a threat to the petitioner's life.
The court is very conscious of the fact that in 2008, the national security was at the risk mounted high and one of the federation unit was at the verge of separation on the demise of Mohtarma Bainzeer Bhutto. The court is very conscious about the fact that no such experiment could be done with any leader of national fame having a large number of following, even at a slightest risk, if it has endanger his life.
The court sought guidance from the precedents of the Hon'ble superior judiciary and found a case titled "Khawaja Anwar Majeed Vs. National Accountability Bureau and others" cited as PLD 2020 Supreme Court 635" and got solution of the situation. Hence while obeying the dictum laid down in the said land mark order of the August Supreme Court of Pakistan, court allows attendance of the accused/petitioner to be obtained through video link.
Two personnels of the court staff were sent to the place where petitioner was present. The video link was established and his attendance was obtained/marked while using modern devices."
(emphasis added)
Perusal of the impugned order dated: 11.08.2023 passed by learned Special Judge, Anti-Terrorism Court No.III, Lahore reveals that it was in the knowledge of the court that petitioner has been convicted and sentenced in aforementioned case; in this regard, relevant portion of said order is hereby reproduced: - "Learned counsel for the petitioner at the time of arguments remained failed to point out any specific provision of law on the basis of which, exemption from personal attendance of the petitioner in a pre-arrest bail can be granted, after the imprisonment followed by the conviction of the petitioner. The court considers that aspect of conviction is not an explanation for adjournment of petition with the order of exemption from personal appearance of the petitioner rather it is a ground for dismissal of bail, if the case is heard on merits. At the same time, this court has already granted a short adjournment to the petitioner for forwarding his arguments in this respect. No further adjournment can be granted as it would amount to misuse of process and the extra ordinary concession."
(emphasis added)
By now it is well settled that presence of accused on each and every date of hearing before the court during pendency of application for pre-arrest bail is necessary/ mandatory and if he is not present in the court, his petition is to be dismissed due to lack of his presence, however, it is also equally well settled that if some explanation has been given or brought into notice of the court regarding non-appearance of the accused and said explanation is satisfactory, then his presence can be exempted; in this regard, guidance has been sought from the case of "SHAZAIB and others versus The STATE" (mentioned supra) and relevant portion whereof is hereby scanned below: - "Section 498-A, Cr.P.C. creates a statutory fetter or a statutory precondition requiring the presence of the petitioner in person in Court for the exercise of jurisdiction by the court for granting pre- arrest bail. In case the petitioner (accused) is not personally present in Court, the Court is not authorized to grant him bail and the petition is to be dismissed for his lack of presence in Court.
However, in case some explanation is furnished for his nonappearance, the Court may, if it finds that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period."
(emphasis added)
It goes without saying that if an accused is granted ad-interim pre-arrest bail in a case and during pendency of said application for pre-arrest bail before the court, he is arrested in another case or confined in jail in another case and it is made impossible for him to approach the court where his application for pre-arrest bail is pending on the relevant date and said state of affairs comes into notice/knowledge of the court, then court has to consider that whether absence of the accused is for the reason beyond his control and in such circumstances, court can procure his attendance to decide the application for pre-arrest bail on merits; in this regard, case of FARHAN MASOOD KHAN versus STATE etc." {PLJ 2021 Cr.C. (Lahore) 550} can also be advantageously referred and relevant portion whereof is hereby reproduced: - "7. After hearing learned counsel for the parties, learned Prosecutor General, Punjab, learned Assistant Advocate General, Punjab and going through the available record with their able assistance, it has been noticed that Farhan Masood Khan (present petitioner/accused) applied for grant of pre-arrest bail in case arising out of F.I.R No. 839/2020, registered at Police Station: Cantt.
District Gujranwala (mentioned above) before learned Sessions Judge, Gujranwala, which petition was entrusted to learned Addl. Sessions Judge, Gujranwala and petitioner was granted ad-interim pre-arrest bail on the same day till 18.08.2020, which was further extended to 27.08.2020 and then till 11.09.2020, however, petitioner was arrested on 31.08.2020 in case arising out of F.I.R. No. 938/2020, dated 28.08.2020 (mentioned above), petition under Section: 491, Cr.P.C. was filed for his recovery and bailiff submitted his report on 31.08.2020 to the extent that petitioner has been arrested in case arising out of aforestated F.I.R. No. 938/2020 registered at Police Station, Cantt.
District Gujranwala and said petition was disposed of vide order dated 01.09.2020 (mentioned above). Now it is admitted position that both cases i.e. F.I.R. No. 839/2020 and F.I.R. No. 938/2020 were registered in one and the same police station i.e. Police Station, Cantt. District Gujranwala; petitioner was arrested on 31.08.2020 in case arising out F.I.R. No. 938/2020, he was on ad-interim pre-arrest bail till 11.09.2020 in case arising out of F.I.R. No.839/2020 and was not arrested in said case, however, fact that he was on ad-interim pre-arrest bail in instant case was in very much knowledge of police of said police station as both cases were registered in one and the same police station and record of case arising out of F.I.R. No. 839/2020 was produced by Pervi Officer before the Court of learned Addl. Sessions Judge, Gujranwala during proceedings of said petition for grant of pre-arrest bail on 18.08.2020 and also on 27.08.2020 when petition was adjourned for 11.09.2020; petitioner was sent to Central Jail, Gujranwala in case arising out of aforestated F.I.R. No. 938/2020 but Station House Officer of Police Station, Cantt. Gujranwala and Investigating Officer (concerned) did not inform the concerned authorities of Central Jail, Gujranwala that petitioner was on ad-interim pre-arrest bail till 11.09.2020 in instant case and he has to be produced over there and also did not make any arrangement for his production before the said Court on 11.09.2020, although record of the case was even on that day produced by the Pervi Officer before said Court; furthermore, when aforestated application was moved by learned counsel for the petitioner before learned Addl. Sessions Judge, Gujranwala while mentioning therein all the aforementioned state of affairs i.e. petitioner is confined in Central Jail, Gujranwala in case arising out of aforestated F.I.R. No. 938/2020 and requested for exemption of his personal attendance and summoning him from jail concerned, then it was appropriate for learned Addl. Sessions Judge, Gujranwala (concerned) to summon the petitioner/accused from jail and decide his petition for pre-arrest bail on merits because absence of the petitioner/accused was not willful rather beyond his control as he was confined in Central Jail, Gujranwala (as mentioned above). It goes without saying that if petitioner is granted ad-interim pre-arrest bail in a case till some specific date and during this period, police of the same police station arrests him in some other case and said fact is brought into notice/knowledge of concerned Court, then said Court is under all the obligations to summon said accused from custody of the police or the jail and decide his petition on merits instead of dismissing the same due to non prosecution particularly when his counsel is available in Court to prosecute said petition because this is not willful absence. It further goes without saying that if it is not immediately checked then it would amount to encourage the abuse of process of Court and defeat the spirit of order of the Court qua granting ad- interim pre-arrest bail in a case and could give license to the police to arrest the accused in some other case when he is on ad-interim pre arrest bail in a case and then getting him confined in custody/jail and making impossible for him to approach the Court on the relevant date, of course, such sort of state of affairs is very alarming an neither can be appreciated nor approved. Therefore, impugned order dated 11.09.2020 passed by learned Addl.
Sessions Judge, Gujranwala regarding dismissal of petition filed by the petitioner for grant of pre- arrest bail in case arising out of F.I.R. No. 839/2020, registered at Police Station, Cantt. District Gujranwala, due to non-prosecution, is not in accordance with law and facts of the case rather null & void ab-initio, hence, hereby set-aside; said petition for grant of pre-arrest bail shall be deemed as pending before the same Court and same shall be decided after summoning the petitioner/accused from custody."
(emphasis added)
The judgment of Islamabad High Court passed in Criminal Revision No.127-2023 (mentioned supra) can also be safely referred and relevant portions from the same are hereby reproduced: - "8. In order for a bail before arrest application to be decided, the petitioner needs to be present before the court in terms of section 498-A Cr.P.C. Generally, at the time when the applications for bail before arrest are entertained, ad-interim bail before arrest is granted, it is observed by the court that the petitioner shall be present on every date of hearing. The only exception to the said order is when request for exemption is sought and granted by the court, which exemption should liberally be granted, if there seems to be genuine bonafide reasons for absence of the accused, however, the court cannot decide the application for bail before arrest in the absence of the accused. The said principle was reiterated and highlighted by the Supreme Court of Pakistan in a recently handed down judgment reported as Shah Zaib and others Vs. The State (PLD 2021 Supreme Court 886). It was observed by the Apex Court that where the petitioner is not present in the court, the court simply can dismiss the application for bail before arrest due to his absence, but should not proceed to decide the case on merits. It was also observed that any subsequent application for bail before arrest by the same petitioner should not be agitated in the High Court but rather before the court of first instance, which had earlier dismissed the application due to non- appearance and explain his reasoning for the absence and in case, the court finds absence plausible, can proceed to decide the case on merit. ............"
"8.[sic] In view of referred case law, admittedly, the petitioner was not present before the court on 15.08.2023 naturally for the reason beyond his control, as he was confined in Central Jail Attock to serve the sentence. The exemption from appearance sought was turned down. It would not be out of place to say that absence of the petitioner was not deliberate and the courts ought to have considered the said fact and liberally granted his application for exemption before determining further course of action.
9. In a fairly recent judgment, Lahore High Court in case reported as Farhan Masood Khan Vs. State etc. [PLJ 2021 Cr. C. (Lahore) 550], has observed that in an appropriate case, production order can also be passed by the courts hearing bail before arrest application. This is another option that was available before the courts, however, perhaps not plausible one for the reason that petitioner being an ex-Prime Minister and Chairman of a prominent Political Party, carries security risks and his transportation and security arrangements was a cumbersome task.
10. It is an interesting aspect to observe that despite dismissal of bail applications by the courts, the petitioner has not been arrested in any of the case in hand and it seems that State does not wish to effect his arrest. In the referred backdrop and in light of above case laws, we face a conundrum whether to permit the petitioner to file fresh bail applications explaining his absence pursuant to the dictum of the Supreme Court in case reported as PLD 2021 SC 886 supra, or allow these petitions and let the courts of first instance consider the future course of action for proceeding bail applications on merit, especially in the circumstances, when the State does not seem to be interested in the arrest of the petitioner.
11. As already observed, absence of the petitioner was not deliberate and was for the reasons beyond his control hence, to make him file fresh applications for bail before arrest once he is released from the confinement, in our opinion, would be unjust and unfair. The courts ought to have considered the purport of law in the facts and circumstances given and not arbitrarily dismiss the bail applications.
12. In view of foregoing, we allow instant petition as well as the petitions mentioned in the Schedule-I attached herewith and set aside orders dated 15.08.2023; consequently, the bail before arrest applications filed by the petitioner, shall be deemed to be pending along with applications for exemption from appearance. The courts, while deciding bail applications, may take note of the fact that the State did not arrest the petitioner despite dismissal of bail applications and on the said basis, determine the fate of the applications."
So Far as case of "MUHAMMAD UMAR FAROOQ SALEEM versus THE STATE and anothers"
(mentioned supra) referred by learned Prosecutor General, Punjab is concerned, suffice it to say that in said case law, proposition regarding satisfactory explanation with respect to absence of the accused before the court on date of hearing in application for pre-arrest bail due to his confinement in jail in some other case, has not been discussed; therefore, said case law is not applicable to the instant case and is quite distinguishable.
It is important to mention here that every citizen of Pakistan is to be dealt with in accordance with law and accused is entitled to fair proceeding as well as due process as provided under Articles: 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973, respectively.
7. In view of what has been discussed above, we have come to the conclusion that since petitioner was on ad-interim pre-arrest bail in these cases and during pendency of his applications for pre- arrest bail before Anti-Terrorism Court, Lahore, he was convicted and sentenced in another case titled as "District Election Commissioner, Islamabad versus Imran Khan Niazi" vide judgment dated: 05.08.2023 passed by learned Additional Sessions Judge, Islamabad-West (mentioned above), taken into custody and confined in the prison in said case which fact was brought into notice/knowledge of Anti-Terrorism Court through aforementioned applications for exemption from personal attendance, and it was not possible for the petitioner to appear before Anti- Terrorism Court, Lahore on the fixed date of hearing in said applications for pre-arrest bail without intervention of the court; therefore, explanation regarding absence of the petitioner before Anti- Terrorism Court, Lahore on aforementioned dates was well explained and satisfactory, hence, learned Special Judge, Anti-Terrorism Court No.III, Lahore fell into legal error while holding that applications for exemption of personal attendance of the petitioner are not maintainable as well as while dismissing aforementioned applications for pre-arrest bail due to non-appearance/non- prosecution rather in peculiar facts and circumstances of the case, he was under all the obligations to exempt personal attendance of the petitioner on 08.08.2023 and thereafter to mark/ establish presence of the petitioner on 11.08.2023 through modern device i.e. video-link, which exercise was even earlier done by very same court in the very same application for pre-arrest bail vide order dated: 13.04.2023 (mentioned above) and then to decide the applications for pre-arrest bail filed by the petitioner on merits. Therefore, all aforementioned impugned orders dated: 11.08.2023 are hereby set-aside; all the applications filed by the petitioner for pre-arrest bail in aforementioned cases shall be deemed as pending before learned Special Judge, Anti-Terrorism Court No.III, Lahore. Learned counsel for both the sides are directed to appear before learned Special Judge, Anti-Terrorism Court No.III, Lahore on 30.01.2024 and thereafter said court while keeping in view peculiar facts and circumstances of the case i.e. safety of the petitioner which was itself observed by the Anti-Terrorism Court No.III, Lahore in its order dated: 13.04.2023 (as mentioned above), after obtaining/marking personal attendance of the petitioner through video-link will decide all applications for pre-arrest bail till 06.02.2024. With this observation, all aforementioned revision petitions stand allowed/accepted.