Zahoor Ahmed petitioner, has come up for the cancellation of bail allowed before arrest to Muhammad Nawaz, Muhammad Ashraf and Abdul Haq on 8th May. 1985 by Mr. Tahir Hussain Sherazi, Additional Sessions Judge, in the case registered against them and others under section 148/448/452/149, P.P.C.
2. Petitioner alleged in the F.I.R. That he was in possession of a bungalow inside the premises of Textile Mills Nazimabad and that on the night between 11/12th January, 1985, the respondents alongwith others trespassed into the premises threw out his articles and dispossessed him illegally.
On resistance, his servants were beaten. Respondents were allowed bail before arrest on the ground that they alleged to have entered into the possession with the consent of agent of Zahoor Ahmad, petitioner/informant; and that because the offence is not punishable with death or imprisonment for life. Further that since the petitioner had at some stage demanded rent, therefore, the matter was considered to be of a civil nature.
3. Learned counsel for the petitioner contended that the nature of allegations attracted the provision of section 452, P.P.C. Which was not a bailable offence and that in order to provide a legal cover to themselves. Muhammad Nawaz, respondent filed a suit for declaration and permanent injunction against the petitioner alleging that he was occupying the bungalow as a tenant for the last five years. With the suit, an application for temporary injunction was also moved which was dismissed by the Civil Judge, Faisalabad on 30th January, 1985, on the ground that the respondent was not in lawful possession of the property. He went up in appeal which was dismissed by Ch. Anwar Ali, Additional District Judge, on 11th April, 1985: In view of the judgments of both the Courts below, it was not a case for bail before arrest at all but the learned Additional Sessions Judge has not taken into consideration these facts. Learned counsel for the petitioner also argued that petition for bail before arrest was mace by the respondents which was entrusted to Mr. Akhtar Mahmood, Additional Sessions Judge who fixed it for 16th April, 1985. As he was on leave, the petition was sent to the Court of Mr. Tahir Hussain Sherazi. Additional Sessions Judge and except Abdul Haq, respondent, the remaining absented, therefore, the petition for bail before arrest was dismissed. It was directed that Abdul Haq to appear before Mr. Akhtar Mahmood, Additional Sessions Judge. Since none appeared in that Court, the petition was dismissed on 18th April, 1985 and notices were issued to the sureties for 25th April, 1985. On 16th April, 1985 the respondents again filed a petition for bail before arrest before the learned Additional Sessions Judge explaining their absence. Their petition was sent to Mr. Tahir Hussain Sherazi, Additional Sessions Judge for disposal. Learned counsel contended that it was represented before the Sessions Judge that since Mr. Akhtar Mahmood, Additional Sessions Judge has taken up proceedings against the sureties before, the bail matter should also be sent to that Court. An application for- transfer of the bail petition was also made which was fixed for hearing for 8th May, 1985 but on this date, although it was brought to the notice of Mr. Tahir Hussain Sherazi, Additional Sessions Judge that a petition for transfer of bail was pending before the Sessions Judge, he disposed of the petition.
4. I have considered the matter. In my view, since the application for temporary injunction in the civil suit and the appeal thereof were both dismissed, the observation of the learned Additional.
Sessions Judge that it was a matter of civil nature could hardly find support. The reasoning of the learned Additional Sessions Judge was faulty that since the case is not punishable with death or transportation for life, therefore, it afforded a ground for bail before arrest. The offence A under section 452, P.P.C. Is not a bailable offence. It has also been brought to my notice that an attempt is now being made to delete section 452, P.P.C. From the charge but as allegations go, the provisions of section 452, P. P. C. Are prima facie attracted. Under these circumstances, I am of the views that it was not at all a case for bail before arrest. This petition is, therefore, accepted and the bail allowed to the respondents is cancelled.