QAISAR AHMAD HAMIDI, J.- Since common question of law is involved in all the above applications far pre-arrest bail made on behalf of applicant Abdul Jabbar Solangi, they are being disposed of by a consolidated order.
2. Abdul Jabbar Solangi who was detained in Crime No.41 of 1984, Dadu P.S., under section 302- 307/34, P.P.C (Cr.BA- No.771 of 1992), Crime No. 42 of 1984, Dadu P.S, under section 307-353-333, P.P.C. (Cr.B A.No.770 of 1992), and Crime No.44 of 1984, Dadu P.S. Under section 13-D of the Arms Ordinance, 1965 (Cr. BA. No.772 of 1992), was granted bail by this Court. The cases in which he was facing trial were subsequently transferred to the Court of Additional Sessions Judge, Kotri, where on 30.5.1989 the applicant remained absent and admittedly he is still not attending the said Court with the result that his bail was cancelled and warrants of his arrest were issued. The applicant did not surrender before the trial Court in all the three cases and instead he applied for protective pre- arrest bail to enable him to approach the concerned Court, by filing BA. No.228 of 1992, BA. No.227 of 1992 and BA. No.229 of 1992, which were disposed of by me on 8.10.1992, during circuit at Hyderabad, for the following reasons:- "It is stated on his behalf that on account of the absence of the applicant his warrant of arrest has been issued and although he wants to surrender before the trial Court, he is not in a position to do so for the reasons mentioned above. Mr. Shoaib Shibh, learned counsel for applicant has therefore, prayed that this application for pre-arrest bail may be converted into an application for protective pre-arrest bail and he may be granted some relief to enable him to surrender himself before the trial Court. The learned AA.G. Has got no objection if protective pre-arrest bail is granted to applicant for a period of one week to enable him to surrender before the trial Court."
3. On 13.10.1992 the applicant appeared before the trial Court, viz. The Court of Additional Sessions Judge Kotri, for relief, but he was advised to approach the Sessions Judge, Dadu, for the said purpose. Accordingly the applicant surrendered before Sessions Judge, Dadu on 15.10.1992 for obtaining pre-arrest bail. The- learned Sessions Judge, Dadu, admitted his applications for pre- arrest bail and fixed them for 28.10.1992, without granting interim relief. It is in these circumstances that the applicant has again filed these applications seeking interim pre-arrest bail till the disposal of his bail applications by learned Sessions Judge, Dadu.
4. I have heard Mr. Shuaib Shibh, learned counsel for applicant and Mr Abdul Hakeem H. Bijarani, learned A A.G. For State. The latter has opposed the prayer of the applicant.
5. The provisions contained in section 498, Cr.P.C., empower the Court of Sessions and the High Court to grant bail to an accused person before he is physically arrested. The scope of section 498, Cr.P.C-, was circumscribed by section 498-A, Cr.P.C, which was added in the year 1976 in the following words:- "Nothing in section 497 or section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction."
6. The power to grant bail under section 498, Cr.P.C, is not additional to or independent of section 497, Cr.P.C, and the provisions contained in section 497, Cr.P.C., are to be kept in view while passing orders under section 498, Cr.P.C. The case of Muhammad Ayub vs. Muhammad Yaqub and another, reported in PLD 1966 S.C. 1003, is the guiding authority, wherein it was made clear that section 498, Cr.P.C, is not to be construed to extend the power of the High Court or a Court of Sessions tc grant bail in cases where these Courts would not be competent to grant bail under section 497, Cr.P.C.
7. The second proviso to sub-section (1) of section 497, Cr.P.C, which was added by the Criminal Procedure (Amendment) Act, 1974, and was subsequently amended by the Code of Criminal Procedure (Amendment) Act, 1976, made it obligatory upon the Court to issue notice to the prosecution before granting bail to accused in cases falling within the prohibitory clause of this section. This provision has to be kept in view while deciding an application under section 498, Cr.P.C., for the grant of pre-arrest bail. It, therefore, follows that the interim pre-arrest bail in cases falling under sub-section (1) of section 497, Cr.P.C, cannot be granted unless the compliance of second proviso to this sub-section is made, which provides as follows:- 'Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released."
8. I am conscious of the fact that the case of Muhammad Aslam vs. The State, reported in PLJ 1974 Cr.C. (Lahore) 412, appears to support view taken by learned counsel for applicant, wherein it was observed that the Courts while admitting a bail before arrest application should in fitness of things, grant interim bail to petitioner so that he is not arrested till the disposal of the bail application. The authority of this order which was passed on 12.4.1974 has been considerably weakened by the addition of the second proviso to sub-section (1) of section 497, Cr.P.C. It may also be added that no time limit is fixed for a notice to the prosecution and in appropriate cases of real hardship an application for anticipatory bail can be heard on the same day when it is filed after giving notice to the prosecution.
9. No exception can, therefore, be taken to the orders passed by learned Sessions Judge, Dadu. The bail applications are accordingly dismissed.
10. By short orders dated 28.10.1992 I had dismissed these bail applications. These are the reasons for the said orders.