1. ' BASI-IARAT AHMAD SHAIKH, J.--- The appellant filed a revision petition against the order passed by the Tehsil Criminal Court, Pallandri on 11th of April, 1994 seeking cancellation of by the former Court to Muhammad Ashraf and Muhammad Suleman, respondents before us, as well as Muhammad Mansha and Muhammad Niaz. The last mentioned two accused persons did not appear before the Shariat Court in spite of service whereupon their bail was cancelled. The revision petition in respect of the two respondents was dismissed.
2. ' There are in all five accused persons in the case four of them have been mentioned above while the fifth Muhammad Ishaque alias Kala, the principal accused, is confined in judicial custody.
3. ' The facts of the case, briefly stated, are that on 11th of January, 1994 at about 10-30 a.m. The appellant, a practising lawyer, was on his way to the Court of Sub-Judge, Pallandri and was near the office of Tehsildar when Muhammad Ishaque alias Kala armed with a knife attacked him. The complainant received knife injury on his back but before the aforesaid accused could succeed in his attempt to inflict another injury the complainant escaped from the place and took shelter in the Court of Sub-Judge/Magistrate First Class. On his request his statement was recorded by the judicial officer. In the statement he alleged that the offence had been committed by Muhammad Ishaque alias Kala on the abetment of the other accused persons. The same allegations are incorporated in the F.I.R. It is alleged about respondents, Ashraf and Suleman, that they were present in the Court premises and had been noticed engaged in whispering. They were said to have instigated the crime on account of some previous disputes. It is also stated that respondent Ashraf subsequently tried to cause injury to the complainant when he was being removed to the hospital in a vehicle. Apart from others, the respondents moved a pre-arrest bail on 12th of January before the Zilaee Adalat at Rawalakot which granted them ad interim bail and sent their application to the Additional Zilaee Adalat at Pallandri. For four months they remained on bail before arrest. Before the matter could be decided by the Additional Zilaee Adalat challan under section 15 of the Islami Tazeerati Qawaneen Nafaz Act/307, Penal Code read with sections 109 and 114 of the Penal Code was presented on 11th of April, 1994 before the Tehsil Criminal Court. Four accused persons other than Kala, were present. They were granted bail. This is the order which was unsuccessfully challenged before the Shariat Court.
4. ' The learned counsel for the appellant, Sardar Rafique Mahmood Khan, submitted that when challan was presented a written application was moved by the complainant drawing the attention of the Tehsil Criminal Court that the file may be transmitted to the Zilaee Adalat at Rawalakot so that it may be transmitted to another Court of competent jurisdiction for the following reasons:--
(i) The learned Sub-Judge/Magistrate First Class, who is member of the Tehsil Court is a witness in the case and his name appears in the calendar of witnesses while accused Ashraf is real brother of the learned Tehsil Qazi, the other member of the Court, and accused Niaz Khan is brother-in-law of the learned Qazi. Reliance was placed on section 556 of Cr.P.C. Which prohibits a Judge or Magistrate to try any case in which he is personally interested, except with permission of the appellate Court.
(ii) Four accused persons are on bail before arrest and the order has to be announced by the Additional Zilaee Adalat but the accused persons were trying to obtain bail from the trial Court which is not legally correct.
5. ' The learned counsel submitted that the trial Court acted illegally in granting bail 'to the accused persons due to the afore mentioned reasons. He also submitted that a Magistrate or a Tehsil Court does not have the power to grant bail to a person who is not under arrest and the power to grant pre-arrest bail is vested in the Sessions Judge/Zilaee Adalat and the High Court/Shariat Court under section 498. The learned counsel also submitted that in any case power under section 497 available to the Tehsil Court was discretionary but the Tehsil Court did not apply its mind as to whether the facts of the case warranted that the accused persons may be enlarged on bail. The contentions of the learned counsel are supported by Mr. Sardar Khan, Advocate-General.
6. ' The learned counsel for the respondents Sardar Muhammad Sadiq Khan, vehemently opposed the contentions raised by the learned counsel for the appellant. He submitted that allegations against the respondents were minor in nature as no overt act was attributed to them. He submitted that trial Court was competent to grant bail to those persons who appear before it and the fact that such persons are not already under arrest makes no material difference because when they appear before the Court they surrender themselves. He relied on the phraseology of section 497 which, inter alia, lays down that when any persons accused of non-bailable offence, "appears before the Court or is brought before the Court, he may be released on bail.
7. ' The record shows that bail before arrest was moved at Zilaee Adalat at Rawalakot on 12th of January, which granted ad interim bail to respondents and others and it was directed that the file may be sent to Additional Zilaee Adalat at Pallandri.
8. ' After quite a few adjournments the Court heard the arguments on 11th of April and fixed the 20th of April for announcement of order. This fact was brought to the notice of the Tehsil Adalat but that Court ordered grant of bail to the accused persons. In our opinion the trial Court did not act properly in granting bail to the accused persons. Having come to know that the matter was pending before the appellate Court the trial Court should have stayed its hands and the only proper course open to it was to wait for the judgment of the appellate Court. It is a minimum requirement of judicial propriety that when the question whether or not the accused persons were entitled to bail was under consideration of the higher Court the trial Court should have refrained from deciding the question of bail. Instead of that, the trial Court pre-empted the decision of the Additional Zilaee Adalat. Therefore, the order passed by the trial Court must be set aside.
9. ' We also note that the order passed by the trial Court is mechanical. It disposed of the matter about grant of bail in one sentence by directing the persons present in the Court to execute bail bonds as well as surety bonds to the tune of Rs,20,000 failing which it was ordered that they were to be detained in judicial lock-up. The persons present before the Court were accused of abetment in a case under section 307, P.C. (attempt to murder) as well as section 15 of the Islami Tazeerati Qawaneen Nafaz Act in which the main accused had inflicted a knife injury on the complainant. We do not want to express any opinion about the veracity or otherwise of the allegations against the four persons present before the Court (the main accused was not present) but in a non-bailable case the power of the Court to grant bail is discretionary and, unlike section 496 which lays down that a person accused of a bailable offence shall be released on bail, it is provided in section 497 that a person accused of non-bailable offence may be released on bail. It clearly is the law that before passing any order under section 497 the Court has to apply its mind whether the facts of the case warrant grant or refusal of bail. In the present case the trial Court did not apply its mind to facts of the case and proceeded to order that bail bond may be executed as if it was the only course which could be adopted by that Court. It was clearly not so and it was illegal to proceed in such a manner. We do not think that after examining the nature of allegations and overall facts of the case the trial Court might have reached the conclusion that the accused persons were entitled to bail but a mechanical order like the present one cannot be upheld.
10. ' We may point out that the Tehsil Court or a Court of Magistrate cannot grant pre-arrest bail, as has been done in the present case. We are C conscious of the fact that under section 497 a person who appears before the Court, just as a person who is brought before the Court, can be granted bail, but it needs to be clarified that 'appearance' in the aforesaid section is not of a person who is wanted by the police in a non-bailable offence and who is avoiding arrest. If such a person appears before the Tehsil Court or a Court of Magistrate First Class he cannot be granted bail because that would fall under the category of pre-arrest bail. The category of persons who can be granted bail on appearance before a trial Court would include, for instance, a person who is summoned by that Court by issuing a summons or a bailable warrant.
11. ' The point raised by the appellant that two accused persons were related to the Tehsil Qazi does seem to be of vital importance in the present case because, as it transpires from the record, respondents Nos,1 and 2 in the present case were granted bail by the learned Sub- Judge/Magistrate First Class and the learned Qazi did not associate himself with the order of granting bail. However, there is force in the argument that the learned Magistrate should have also refrained from deciding the case because he was a witness cited in the challan presented before the Court.
12. ' The result is that the appeal is accepted and the order passed by the Tehsil Court on 11th April, 1994 is set aside in respect of the respondents. The accused-respondents may apply to the trial Court for after arrest bail and that Court may grant or refuse bail to them in light of the facts of the case.