' Feeling aggrieved by an order of the learned Sessions Judge, D.I. Khan dated 16th January, 1990, whereby bail before-arrest has been allowed to the respondents Mohammad Afzal and Moulvi Ashiq Elahi, accused-respondents 1 and 2, Haji Gamun, petitioner, has moved this petition under section 497(5) of the Criminal Procedure Code (V of 1998) for cancellation of the said bail
2. According to the First Information Report, the petitioner in the early hours of 10th December, 1989, went to the village mosque for offering his morning prayers. After opening the lock and entering the mosque, he saw Mohammad Afzal, duly armed with a Danda and Moulvi Ashiq Elahi, the respondents Nos. 1 and 2, already present in the courtyard. On seeing him, respondent No.1 dealt a `Danda blow' to the petitioner which caused injury to him. Thereupon, his report was taken down the same day in the daily Diary. He was then referred to the Hospital for examination and treatment. On receipt of the X-Ray report on 18th December, 1989 from the concerned Medical Officer, a case under section 325/34, P.P.C. Was accordingly registered against the respondents at Police Station Cantt. D.I. Khan. The motive for the offence is that respondents No.1 and 2 belong to a Sunni faction called `Deobandi' whereas the complainant claims to be `Barelvi' and are thus at loggerheads over the exclusive right of offering prayers in the mosque.
' On the following day, i.e.19th December, 1990, the respondents 1 and 2 approached the learned Sessions Judge for grant of inticipatory bail who initially admitted them to ad interim bail and then confirmed it vide his order dated 16th January, 1990.
3. Malik Muhammad Jahangir Awan, learned counsel for the petitioner, vehemently urged that the discretion exercised by the learned Sessions Judge was neither in accordance with law, nor the principles laid down by the superior Courts for grant or refusal of pre-arrest bail. The learned counsel submitted that the sole reason which weighed with the learned Sessions Judge was "the delayed registration of the case in which only infliction of stick blows by accused at the complainant were alleged" and if bail before-arrest is not granted to the petitioners, they would suffer irreparable loss and humiliation at the hands of Police".
4.. The learned counsel appearing on behalf of the State has supported the plea raised for cancellation of pre-arrest bail granted to the accused-respondents.
5. Mr. Muhammad Karim Anjum Qasuria, learned counsel for the respondents, submitted that the medical evidence does not support the allegation that the petitioners had sustained grievous hurt within the meanings of section 325, P.P.C. According to him, the medical evidence only shows that the case against the respondents, prima facie, fell under section 323, P.P.C.
6. After going through the record, I have formed the opinion that it is not necessary for the disposal of this petition to express any considered opinion as to the nature of the alleged offence alleged to have been committed by the accused-respondents, Likewise, the learned Sessions Judge has also ignored that in the cases of hurt the report is normally recorded in the Daily Diary. If the nature of the injury is determined to be grievous, then the case is registered, otherwise not. That is what was also done in this case. In the instant case, as stated earlier, the report was taken down in the Daily Diary on 10-12-1989 at 07.30 a.m. Within 2 hours and 45 minutes. On the receipt of the medico-legal report on 18-12-1989, the case was duly registered the same day. Be that as it may, delay in registration of the case, by itself, is not a ground for grant of bail before arrest.
7. The crucial question is whether on the allegations made in the First Information Report and the result of the medico-legal report a justification was made out for grant of pre-arrest bail "which is not the rule in the criminal cases". Within about a month, three-four cases of cancellation of pre- arrest bail have come to my notice in which the learned Sessions Judges while dealing with those cases did not adhere to the principles enunciated by the Superior Courts on the subject. It would, therefore, be worthwhile to reiterate the principles that have been laid down by the Superior Courts of the country since 1949. The first authoritative pronouncement on the point is Hidayatullah Khan v.
The Crown PLD 1949 Lahore 21 which reads as under:-- "In 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 the power should, however, be confined to cases in which not only is good prima fade ground made out for the grant of bail in respect of the offence alleged, but also.. It should be shown that if the petitioner was to be arrested and refused bail, such an order would, in all probability, be made not froth motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such eventuality suffer irreparable harm."
' The interpretation put on section 498 ibid by the Full Bench of Lahore High Court in Hidayatullah's case was not approved in the case of Crown v. Khushi Muhammad PLD 1953 Federal Court 170 with the following reasoning:- "Under sections 496 and 497 an accused person can be released on bail. This presupposes that "the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put under any restraint whatsoever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide interpretation envisaged in the case of Hidayatullah Khan, section 498 would not be ancillary or subsidiary, but would be wholly independent of the powers conferred on the High Court or the Court of Session by sections 496 and 497."
' In Shoukat Hussain Rizvi v. The State PLD 1961 Karachi 121, a learned Single Judge of the Karachi Bench of the earstwhile West Pakistan High Court expressed the view that benefit of bail could be extended to persons whom the police were out to arrest and where the police have taken active steps towards that end other conditions remaining the same.
8. The august Supreme Court in Sadiq Ali v. State PLD 1966 SC 589 while referring to the cases of Hidayatullah and Khushi Muhammad supra elucidated the scope of section 498 and observed:-- "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 the circumstances would justify the grant of bail. Such an interpretation 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." (Underlining is mine).
' The main conditions governing the exercise of jurisdiction in pre-arrest bail applications were succinctly enumerated by Muhammad Afzal Zullah, J., as his Lordship then was, in the case of Zahoor Ahmad v. The State PLD 1974 Lahore 256. In this connection, I can do no better than reproduce the conditions laid down by his Lordship. These conditions are-- "(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
(b) that the petitioner should physical surrender to the Court;
(c) that on account of ulterior motives, particularly on the part of the police, there should be apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf, the provisions contained in section 497, Cr.P.C.
Would have to be kept in mind; and
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C."
' In a subsequent case of Ghulam Abbas v. Zakaullah PLD 1976 Lahore 21, it was observed that the foremost consideration in the mind of the Court in dealing with an application for bail before arrest, is whether irreparable injury to the name and liberty of a citizen would result if bail is refused. It was, however, added that merits of the case and the evidence in possession of the prosecution had also to be kept in view and the accused has to make out a case on merits also.
9. Few other considerations, besides those discussed above, it was also highlighted in Muhammad Safdar v. The State 1983 SCMR 645 that "bail before-arrest is not the rule in cognizable offences" are that It is to be allowed only when it can be shown that the accused apprehends arrest due to some ulterior motives on the part of the authorities or the other influential person", or that "there are peculiar features of the case which would justify the exercise of this discretionary power".
10. Before proceeding to examine the case before me, it may be pointed out that in Zia-ul-Hassan v. The State PLD 1984 SC 192, the august Supreme Court, while expressing displeasure over the lack of awareness on the part of the learned Sessions Judge of the law about pre-arest bail as distinguished from the bail after-arrest, expressed a word of caution in the following paragraph:-- "The Court has no power to grant bail before-arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala tides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny."
' At the end, I would refer to the statement of law on the point enunciated by Shamim Hussain Kadri, Actg. C.J., as his Lordship then was, in Shabir Ahmad v. The State PLD 1981 Lahore 599, wherein the following observations being relevant to the present case as well are being reproduced as under:- "The criteria laid down in Hidayatullah Khan's case has not undergone any change so far. The three principles laid down therein have to be strictly followed. This power should sparingly be exercised in appropriate cases. The Courts should strictly avoid the exercise of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general complaint. The 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 tranquillity of the State and destroying the peaceful living of citizens should not automatically get pre-arrest bail on mere asking. The Court should seriously apply its mind before passing the order of pre-arrest bail. I must, however, make it clear that Courts are the guardians of liberty of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view. The golden principles in Hidayatullah Khan's case must strictly be followed."
11. After scanning the case law at some length, the following guiding principles should be kept in view:- "(i) Considerations which are to weigh with the Court while dealing with an application for bail before-arrest are quite different from those which are to be taken into account after a person has been arrested and he moves for bail;
(ii) The power to grant pre-arrest bail should sparingly be exercised in appropriate cases and while dealing with such a plea, the Court should seriously apply its mind before entertaining it; and
(iii) the presence of the accused in Court is mandatory for .Grant of bail before-arrest by virtue of section 498-A, Cr.P.C."
' Now I would, at the cost of repetition, reproduce for the guidance of the Courts of Session the conditions laid down by the superior Courts for the grant of pre-arrest bail. These conditions are: "(i) That theie should be a genuine proof of apprehension of imminent arrest with the effect of factual restraint on the petitioner;
(ii) that the petitioner should physically surrender to the Court;
(iii) that on account of ulterior motives particularly on the part of police there should be apprehension of harassing and undue irreparable humiliation by means of unjustified arrest;
(iv) that it should be otherwise a case on merits for exercise of discretion in favour of the petitioner for purposes of bail. In this behalf, the provisions contained in section 497, Cr.P.C. Arc to be kept in mind; and
(v) that unless there is reasonable explanation the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C.
12. As stated earlier, the learned Sessions Judge has exercised the discretion of anticipatory bail to respondent No.1 on two-fold grounds firstly, that there was a delay in lodging the report and, secondly, that if bail before-arrest was not granted to the accused-respondents herein, they would suffer irreparable loss and humiliation at the hands of police. It has already been pointed out that the learned Sessions Judge has misconceived the drawing up of the F.I.R. After a week of the occurrence, because the report was duly incorporated in the daily diary soon after the occurrence and the case was appropriately registered after the receipt of medico-legal report. Nonetheless, the delay, per se, in lodging the F.I.R. Is no ground for grant of bail muchless than the pre-arrest bail.
This principle proceeds on the hypothesis that there is likelihood of the prosecution to explain the delay in lodging the F.I.R. At the trial stage. The mere mention of the mala fides in the application for pre-arrest bail is not enough to claim the discretion of anticipatory bail. There should be sufficient material to show that there were ulterior motives either on the part of the police or the adversaries of the accused that the case has been registered for harassing and undue humiliation by means of unjustified arrest and, lastly, that it should be otherwise a fit case on merits for exercise of discretion in favour of the accused. In the case before me, there is a direct charge in the F.I.R.
Against the accused-respondents, of whom respondent No.1 has been assigned the effective role of giving the petitioner `Danda' blow resulting in his grievous injury; the recovery of the turban left by the petitioner at the spot and the medico-legal report showing that the petitioner had sustained grievous injury go a long way to connect respondent No.1 with the offence. Then, there are no extraordinary circumstances to entitle the accused-respondent No.1 to the discretion of pre-arrest bail. Even if there was some material available on the record to show that there were no reasonable grounds to believe that the respondents had committed the offence, yet the learned Sessions Judge allowed bail before-arrest in the case of a grievous hurt quite contrary to the law laid down by the superior Courts. No doubt, considerations for grant of bail and cane illation of the same are quite different, but the fact remains that in the instant case anticipatory bail was allowed to at least accused-respondent No.1 without legal and factual justification.
13. That being the position, there is no option but to cancel the bail granted to accused-respondent No.1. He is present in Court, taken into custody and sent to jail. In so far as accused-respondent No.2 is concerned, since the role of proverbial lalkara has been assigned to him, by way of abundant caution, I would not, therefore, interfere in the discretion exercised by the learned Sessions Judge.
The plea for cancellation of his bail is, as such, not entertained. Respondent No.1 would, however, be at liberty to move the competent Court for regular bail if so advised. The Court, to which an application is made, shall decide the question of bail without being influenced by the observations made by this Court on the line of distinction that has been drawn between pre-arrest bail and after-arrest bail. The record should be sent forthwith to the competent agency for proceeding further in the case.