These are a large number of cases in which bail in antici--pation of arrest is sought by the petitioners. Mr. Abdul Fateh Memon and Mr. Z. H. Chishti each of whom appears in a number of cases agree that in view of certain common questions of law which arise the cases may be heard together and arguments have been heard by me addressed by both of them. Mr. Jamaluddin H.
Ahmed, Additional Advocate-General appears for the State in each of these cases. In all these cases an allegation is made that the petitioners were either candidates or supporters of persons who were candidates in the 1970 elections in constituencies of Larkana District against the candidates of the Pakistan People's Party which has been returned victorious. Indeed the victorious candidates in each of these cases were either Mr. Z. A. Bhutto who is now the President of Pakistan or Mr. Mumtaz Ali Bhutto, now Governor of Sind.
2. In none of these cases is it claimed that there is in fact any actual proceedings pending against the petitioners by way either of investigation or a judicial proceeding in which warrants for their arrests have been issued or in course of which their arrest order recorded is imminent or even likely. In fact the learned Additional Advocate-General has made a statement that there is at present no case pending for investigation against any of the petitioners at any of the police stations in the District of Larkana nor is there any case sent up to Court on the basis of the police investigations from any of the police stations. He cannot of course state that there is no private complaint filed against the petitioners but it is no body's case that there is any such private complaint. Equally he cannot state that prosecutions may hereafter launched and here again of course it is impossible to make any such prediction.
3. In the greater number of these cases orders have already been passed by a learned Single Judge of this Court granting, interim bail. These have come up today for confirmation or otherwise of the interim orders passed already while in the others there are no such orders.
4. The point which has caused me the greatest anxiety in these cases is whether it is permissible for this Court to grant bail when no allegation, whatever, is made of any particular proceeding or that in respect of any particular offence alleged to have been committed, the petitioners are liable or likely to be arrested. Learned counsel took me through a number of cases of which I think it will suffice to refer to two; namely, the case of Crown v. Khushi Muhammad (PLD 1953 FC 170) and the case of Sadiq Ali v. The State (PLD 1966 SC 529). There had been prior to the case of Khushi Muhammad some conflicting cases at the bar to grant bail before an actual physical arrest had been made. In the case of Khushi Muhammad the Federal Court took a view which is expressed by the then Chief Justice in the following language: "After a careful examination of the provisions of section 496, 497 and 498 of the Code, I have reached the conclusion that a person cannot be admitted to bail against whom a report had been lodged at the police station but who has not been placed in custody, or under any form of restraint, or against whom no warrant for arrest had been issued. In the case of a person who Is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if ha appears in Court and surrenders himself. The powers of the High Court under section 498, are not merely revisional as has been observed by Tayabji, C. J. In the Sind case, but are concurrent with those of the Court of first instance."
It is clear, therefore, that the Federal Court held that bait can be granted not only to persons in actual arrest but against whom warrants have been issued or who are under some form of restraint. The position was again examined in the case of Sadiq Ali and Mr. Justice S. A. I2ehman, as he then was, observed: "As a result of the above discussion, I have reached the conclusion that the 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 conditions for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced."
5. Learned counsel has been at pains to persuade me that in the circumstances of these cases it will be said that the arrest of the petitioners is imminent and for that purpose I have been referred to the dictionary meaning of the word `imminent' as being "of events, anticipatory dangers, likely to come or happen--ing soon." With that meaning of the expression `imminent' I have no quarrel but I cannot read this passage as meaning that bail can be granted not in relation merely to a specified charge but generally against any manner of prosecution that may be lodged. It will be observed that in this passage his Lordship after deciding that in cases of this kind bail can, as a matter of power, be granted went on to add the words "and where the circumstances would justify the grant of bail". As understand it this would mean that although bail can be granted in a certain class of cases where the person is not in actual custody it should be granted only where the circumstances are such that the person, being in custody, the grant of bail to him would be proper. I am unable to persuade myself that without knowing the nature of the accusation brought for the kind of proceedings insti--tuted it is possible to judge In anticipation, as it were, that there are circumstances which would justify the grant of bail.
6. Indeed when I suggested to learned counsel that if I were to grant bail in the circumstances of this kind a case can arise where the person granted bail either commits an offence or at least is bona fide accused of committing the offence in which the grant of bail would not be justified. He suggested that the order could be limited by excluding from it such cases. In fact in one of the cases which I am now dealing with, an interim order was passed which excluded a number of class of cases from the operation. It would be difficult, I think, to be able properly to enumerate all the various classes of cases in which the operation of the order were excluded.
7. Another difficulty would arise as to the point of time during which the order was to remain valid. If bail can and ought to be granted in the circumstances like those in the present cases it must of necessity continue indefinitely until an actual arrest is made and the order becomes operative.
Indeed it must continue even after such an arrest because a number of cases in which the petitioners can be maliciously involved must remain indefinite; the order of bail in such circumstances would not, as it were, be exhausted after its first use. I am wholly unable to agree with counsel that section 498 authorises me to place any limitations upon the order of bail once granted by limiting either the time or the class of cases to which it will apply. Obviously in the case where complaint is made of the imminent arrest in connection with a specified offence or specified investiga--tion such a difficulty would not arise at all-the order of bail would become operative, if and only if such an arrest takes place or such an investigation leads to an arrest.
8. In the same case S. A. Rahman, J. Also made the following observations: "On principle, I see no difference between the case of a person against whom a warrant of arrest has been issued and one whose arrest, at the hands of the police, without a warrant, is imminent, unless the Court intervenes. It is only the certainty of arrest in the case of warrant, that can be accepted as the foundation for the exercise of the power of bail and the inevitability of such arrest may be equated with actual restraint or custody. Why is such lacking in a case where steps taken by the police, establish "to the satisfaction of the Court, that for an alleged cognizable offence under investigation, the police, under their vast and undoubted power of arrest without warrant, are determined to take the accused into custody? If the form of the order requires the police officer to admit the accused to bail, to his satisfaction, it amounts to no more than the substitution of one form of threatened custody by another viz. Bail. The powers of the Court being concurrent with those of the police, this fettering of the Police Officer's discretion by order of the Court, does not seem to be exceptionable, on the language of sections 497 and 498 of the Criminal Procedure Code. It is noteworthy that when a Police Officer makes an arrest, without warrant, he must not detain the accused in custody for more than 24 hours, In the absence of a special order from a Magistrate, passed under section 167 read with section 61 of the Code. This provides an index to the subservience of the police in such matters to Judicial determination. As has been hinted in Hidayat Ullah Khan's case further the word "appears", occurring in sections 496 and 497 of the Code need not be necessarily confined to cases where a person has been summoned to appear in Court. A person against whom accusation has been laid either in Court or before the police, might anticipate the issue of a process against him and "appear" voluntarily in Court. He would thus be placing himself in custodia legis, to be dealt with in accordance with law."
I think with respect, the only class of cases which were in his Lordship's mind were cases in which by reason of some proceeding or investigation the likelihood of the petitioner's arrest was considered by the Court to be imminent.
9. I am accordingly of the opinion that no orders of bail can be appropriately passed in the present cases and these applications are, therefore, dismissed. Of course if at any time In future circumstances arise in which the petitioners are advised that bail may be properly granted they will be entitled to present applications for the purpose.
10. Since I am dismissing these applications I have not taken account of one other possible objection which relates to the practice of moving this Court in preference to the Court of Session.
These two Courts have concurrent jurisdiction in such matters and the ordinary principle, where concurrent jurisdiction are involved, is that the Court of inferior jurisdiction should be moved first, certainly circumstances may arise which would induce a superior Court to entertain an application without requiring that the lower Court be first moved and it may well be that the present are cases of that kind but I give no final finding on that Issue. If and when the petitioners find it neces--sary to move fresh applications and if they consider it appropriate to move this Court then it will be for them to satisfy this Court that it should entertain such applications without insisting that the Sessions Court be moved first. All the interim orders passed in these applications are vacated.
11. After this order was dictated the learned Additional Advocate-General points out that so far as Applications Nos. 68/72, 69/72 and 70/72 are concerned there were proceedings under section 107 against the petitioners in those cases and he points this out lest his statement be misunderstood as meaning that no such proceedings were either filed. I deliberately did not take note of these proceedings because it is common ground in these cases that the prayer for bail is being made not in respect of these proceedings but in respect of anticipated arrest.