' The appeal is addressed against the order of District Criminal Court, Mirpur, passed on July 27, 1989 whereby the order of interim bail passed in favour of the accused-respondents was confirmed and they were admitted to bail for an offence under section 15 of the Islamic Penal Laws Act read with sections 427, 447, 448, 452, 148 and 149 of the Penal Code.
2. The matter has arisen out of a report made by Nisar Ahmad to local police Mirpur on July 3, 1989.
It was alleged that there was a dispute over erection of gate by the appellant. The appellant was present in his premises alongwith his family members when he heard some noise in the street. He found the accused-respondents engaged in demolishing his gate. He asked the accused not to demolish his gate, on which Muhammad Ishaque, one of the accused, caused a blow with a rifle butt on his nose. Khawaja Ahmad Din caught hold of him when the other accused gave him beating with fists. The motive of the alleged incident, as disclosed in the first information report, was that the appellant was neighbour of Mst. Sakina Bibi. They used a common street leading to their houses. Mst. Sakina Bibi erected a gate in front of her courtyard, upon which the appellant also erected a gate by closing his courtyard. Mst. Sakina Bibi filed a suit in a Civil Court and also secured an interim injunction 3/4 days before the alleged incident. This was the bone of contention between the parties.
3. On the day of incident i.e, July 2, 1989, Muhammad Ishaque and Haji Muhammad Hussain applied for their bail pre-arrest. The requisite relief was granted to them. The interim bail was subsequently confirmed vide the impugned order. The order vas challenged in appeal before this Court. During pendency of the appeal, the challan was submitted before the Tehsil Criminal Court on August 16, 1989. The local police reported that the accused were not prepared to accompany them to the Court at the time of submission of the callan. On the basis of the aforesaid report, the Court issued bailable warrants and adjourned the case to September 16. As no one appeared on that date, the case was adjourned to October 7. On that date, Muhammad Hussain, Muhammad Ishaque and Abdul Hamid, accused, put up their appearance and the case was adjourned for appearance of rest of the accused. On November 16, when all the accused, except Rasab, appeared in the Court, they were ordered to furnish surety bonds in the sum of Rs,10,000 each.
4. The appeal before this Court came up for hearing on November 19, 1989. On that day, it was disclosed that the accused were admitted to bail by the trial Court. In presence of the changed circumstances, as the subsequent order of bail passed by the trial Court was not assailed, the appeal was disposed of as having become infructuous. This order was challenged in appeal before the Supreme Court. The learned Judges of the Supreme Court accepted the appeal by setting aside the order of this Court and remanded the case for its decision in the light of the following observations:-- "We have given our due consideration to the arguments raised at the Bar. The question as to whether the trial Court could pass fresh order demanding bail bonds from the respondents in presence of the order of the District Criminal Court which was challenged by way of an appeal before the Shariat Court also needs to be resolved. It may be observed that the order of the trial Court, dated 16-11-1989 does not speak of the merits of the case of the respondents as to whether they were entitled to be released on bail or not; the order of the trial Court is mechanical and perfunctory. However, it was for the Shariat Court to consider the legality of the order,. Dated 16-11- 1989 in view of the fact that the respondents had already been released on bail by the District Criminal Court. It is correct that the order of the trial Court dated 16-11-1989 was not specifically challenged by the appellant by way of revision yet the fact remains that the said order being inter- related to the order passed by the District Criminal Court, the legality of the same could be suo motu considered by the Shariat Court in exercise of the revisional jurisdiction, specially so when the same does not appear to have been based on any reason."
5. Raja Lehrasap Khan, the learned counsel for the appellant, argued that the order of bail pre- arrest was misconceived as at the relevant time, no case was registered against the accused nor there was any imminent apprehension of their arrest. In support of the aforesaid contention, reference was made to the date of registration of the case. The learned counsel supported his contention by reference to Chiragh Shah's case 1969 SCMR 134. It was also argued that in presence of the order of release of the accused passed by the District Criminal Court, the trial Court was incompetent to pass further order of bail on presentation of the challan. Ch. Muhammad Taj, the learned counsel for the opposite side, controverted the aforesaid objections and supported the impugned order on all scores.
6. An order of bail pre-arrest is passed in the light of provisions of section 498, Cr.P.C. It is undenied that under these provisions, this Court and District Criminal Court are empowered to admit any person to bail on satisfaction that such person was likely to be arrested for ulterior motives, arbitrarily, capriciously or with mala fide intention, to humiliate and dishonour him. While exercising jurisdiction under these provisions, it is imperative that the person invoking the authority of the Court, should surrender himself to the Court and satisfy that there was an imminent likelihood of his arrest for ulterior motives. It is also incumbent upon him to satisfy that his claim for bail pre- arrest rested on genuine reasons. The aforesaid view finds support from Sh. Zahoor Ahmad's case PLD 1974 Lah. 256, wherein Mr. Justice Muhammad Afzal Zullah (presently Chief Justice of Pakistan) observed in para 10 of his order as:-- "The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr.P.C., 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 physically 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 otherwisie 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;
(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."
7. In present case, on perusal of the application for bail pre-arrest accompanied by an affidavit, it is noticed that the accused-respondents raised grounds in support of their bail pre-arrest, which fulfilled the requisite conditions listed above.
8. One of the objections raised by the learned counsel for the appellant, is that at the time of grant of interim bail, no case was registered against the accused-respondents. Factually it is correct that the case was registered against the accused on July 3, whereas the incident took place on July 2.
But the fact remains that the report was made to the police on July 2. The report is in the manner of a written statement of Nisar Ahmad recorded by the A.S.I. This suggests that after the alleged incident and making of the report, the accused genuinely apprehended their imminent arrest by the local police. Consequently, on apprehension of their arrest, it cannot be said that the steps taken by them for seeking their bail before arrest, did not rest on reasonable belief of danger of their arrest. Non-registration of case at the time of interim bail, by itsef, was not sufficient to refuse the relief of bail pre-arrest. All that was required for the satisfaction of the Court, was to have some material before it showing thereby that the accused who surrendered before the Court, was apprehending his imminent arrest and that such arrest was, prima facie, being carried in furtherance of mala fide action. In present case, as stated earlier, the aforesaid condition was fulfilled. This view finds support from the aforesaid case of Sh. Zahoor Ahmad. The re:evant observation of the learned Judge appears in para. 8 of his order, as under:- "After hearing both the parties, it has become certain that the arrest of the petitioner in the matter of complaint made by Ghulam Farid is imminent and he, for that reason, is under virtual restraint. I am further satisfied that it the circumstances of this case the technique of keeping the formal registration of the case in abeyance has been developed by some ingenious mind in the police investigating agency in an attempt to prevent the Courts exercising jurisdiction, on the technical plea &non-registration of the case' and/or 'lack of proof of imminent arrest. The rule of law as also its arm in this country is not so ineffective as to permit parties to frustrate lawful procedures and remedies in this manner. The conditions with their underlying principles laid down by the superior Courts for pre-arrest bail have been misunderstood by the police. The formal registration of a case is not a sine qua non for arrest of an accused and/or for investigation of a cognizable case. Section 54, Cr.P.C. And other provisions in this behalf are clear and need no comment.
' See also Ghullam Muhammad v. Muzammal Khan PLD 1967 SC 317 and Muhammad Hayat v. Chief Settlement and Rehabilitation Commissioner PLD 1970 Lah.
679. For filing of pre-arrest bail petition, it would be enough, notwithstanding the absence of formal registration of the case, issuance of warrants of arrest or other similar formalities, if the arrest is otherwise proved to be imminent and the accused is under virtual physical restraint. This condition as held above, is satisfied in this case."
' The case relied upon by the learned counsel for the appellant is of no help in presence of distinguishable facts of that case.
10. The order of the District Criminal Court, therefore, is not found defective necessitating indulgence of this Court at this stage.
11. The learned Judges of the Supreme Court remanded the case for reconsideration of this Court as the propriety of the subsequent order of bail passed by the trial Court, was left unexamined.
There appears to be a misunderstanding with respect to the subsequent order. Firstly, the trial Court, at the time of submission of the challan, considering the report of the police, showing refusal of the accused to accompany the police for appearance before the Court, issued bailable warrants for presence of the accused. It appears that the trial Court directed the accused to furnish new bonds for their appearance in the light of its previous order described above. Secondly, the bail bonds executed by the accused in compliance with the order of bail pre-arrest granted by the District Criminal Court, were not shown to have been despatched to the trial Court for necessary compliance. The bail bonds executed by the accused and their sureties were available on the file of the District Criminal Court. Thus, in absence of the bail bonds, it was desired by the Trial Court that the accused should furnish fresh bail bonds.
12. It is undecided that the order of grant of bail is wider enough in its scope as it contains both, the reasons, for release of the accused on bail and the direction to furnish bail bonds to enable the Court to admit them to bail. Where the condition relating to furnishing of bail bond is not complied with, even in presence of order of grant of bail, the accused cannot get their release. Here in this case, the Court has not passed a definite order of release of the accused on bail as they were already set free by the District Criminal Court. It is accepted that at the time of passing of the order for furnishing bail bonds, the accused were not in any detention. Therefore, it cannot be said to be an order of bail. Undoubtedly, this order is to be construed as an order for furnishing bail bonds. The propriety of the order may be questionable in the sense that once the bail bonds were furnished by the accused at the time of their release on bail pre-arrest, they were not required to furnish fresh bail bonds. But such an objection may find force only when the bail bonds were dispatched for placing on the record of the trial Court. Unless the bail bonds were despatched to the trial Court, the trial Court was justified to ask the accused to furnish fresh bail bonds, so that in case of violation of concession of liberty, the sureties and the accused may be subjected to penalty contemplated under law. Thus, the order for furnishing fresh bail bonds cannot be construed as an order of grant of fresh bail. This aspect of the proposition was not seriously assailed by the learned counsel for the appellant as he being a senior lawyer, realized its consequences.
The appeal merits no consideration. It is, therefore, dismissed.