1. This bail application has been filed on behalf of the applicant seeking the bail before arrest. A preliminary objection has been taken to this bail application by Mr. M.L. Shahani, learned Advocate- General Sindh, to the effect that the application is liable to be rejected on the ground of absence of applicant from Court. Relying on the provision of section 498-A, Cr. P.C., his contention is that after the inclusion of this Section if an applicant is not in custody his presence in Court is necessary for consideration of pre-arrest bail. He submits that this section was added to the Code in 1976 in order to put restriction on the grant of bail. One such restriction contemplated by this section is that a person who is not in custody cannot be granted bail unless present in Court.
2. Mr. Suleman Habibullah, learned counsel for applicant submits that the provisions of section 498-A, Cr.P.C. Is not applicable to the High Court. His argument is that in this section no reference has been made to the High Court and the expression 'Court' used in this section does not cover the High Court. In support of his contention he refers to section 4(j) of the Code which defines the. High Court as, "High Court means the highest Court of criminal appeal or revision for a Province". His contention is that since the High Court has been separately defined it could not be covered by the term 'Court' and had the intention of the Legislature been to apply section 498-A to High Courts also this would have found specific mention in the section.
3. The contention appears to be misconceived. This argument could have been valid only if the term 'Court' would have also been defined in the Code and such definition had excluded the High Court.
4. As is obvious from the above definition of the High Court it is only in the context of determining the status of the High Court in the hierarchy of the criminal Courts. This is also apparent from section 6 of the Code. The very definition of the High Court shows that it is the highest 'Court' of criminal appeal or revision for a Province. This being so it can hardly be said that the High Court would be excluded from the term 'Court' when used in the Code. Accordingly it would appear to me that the term 'Court' used in section 498-A would include High Courts too.
5. It was next contended by the learned counsel for applicant that in a number of cases pre-arrest bail had been granted by the superior Courts without the accused surrendering before the Court. In this regard reference has been made to the cases of Abdul Hameed Khan Jatoi v. The State reported in 1973 PCr.LJ 1032 and the case Liaquat A.I v. The State reported in 1995 PCr.LJ 1283.
6. "This application was made as an urgent motion yesterday and it was claimed before me that although the appellant was by no means desirous of evading surrender to this Court the police had made it impossible for him to do so and that, therefore, I should either dispense with his attendance yesterday or authorise an officer of this Court to go to his residence and obtain an affidavit. I declined to follow the latter course but for reasons which will presently appear, I granted interim bail up to this morning and directed that the appellant should furnish security yesterday and his own personal bond this morning in Court. Security was furnished and the appellant is present before me today."
7. However, it has rightly been pointed out by Mr. Shahani that at the time the order was passed in Jatoi's case, section 498-A, Cr.P.C., had still not been added in the Code, therefore, at that time there was no statutory requirement for the presence of the accused in Court at the time of hearing of the bail application. Now with the addition of section 498-A in the Code, in my view, it has become necessary that an accused who is not in custody should surrender himself before the Court when his bail application is taken up for hearing.
8. For the reasons discussed above, in my view, the presence of the applicant is necessary for considering his bail application. Since the applicant is not present in Court his bail application does not merit consideration and is accordingly rejected without going into the merits of the case.