' The applicant who is complainant in F.I.R. No,148 of 1998, registered at Police Station, Kalakot for the offences under section 302/34, P.P.C. As amended by Qisas and Diyat Ordinance, has prayed for cancellation of anticipatory bail granted by the learned Sessions Judge, Karachi (South) (Mr. Zakir Hussain K. Mirza) to the accused/respondent No,1. Notice of this application was given to the respondents.
2. I heard the learned counsel for the applicant and the respondent No,1 as well as Mr. Dilawar Hussain, Advocate appearing for the State and also perused the record.
3. Briefly stated, the respondent No,1 was shown as absconder in the challan. He surrendered himself before the learned Sessions Judge, Karachi (South) on 26-8-1998 with an application for pre-arrest bail. On this application the learned Sessions Judge passed the following order:- "The applicant has surrendered before the Court. Let him be taken in custody. Let notice of application be given to the D.A."
' The record also shows that the learned District Public Prosecutor (D.A.) also waived notice on the same day and then the impugned order dated 26-8-1998 granting anticipatory bail to the respondent No,1 was passed. It would be relevant to reproduce the following extract from the said order:- "The accused/applicant has surrendered before this Court in the morning and was taken into Custody Notice of the bail application was given to the learned D.A. Who waived the notice. The application for bail was, therefore, taken up.
' I have carefully considered the contention made at the Bar. I have also carefully gone through the police papers including the statements of the eye-witnesses, Raheem Bux and Abdul Razzaq. All of them frankly stated that the present accused/applicant was empty handed. Apparently, there seems to be no connection of the present accused/applicant shown except that he was found at the scene of offence running away empty handed. Interim challan has been submitted and the learned counsel for the accused/applicant undertakes that the accused/applicant will cooperate with the police in investigation of the case.
' In view of the above facts, I find that the accused/applicant is entitled to be released on bail and he shall be released only after he furnishes solvent surety in the sum of Rupees One Lac and fifty Thousand and P.R. Bond in the like amount."
4. Learned counsel for the applicant submitted that the respondent No,1 is involved in a murder case and has been named in the F.I.R. By the complainant, thus no case for bail before arrest was made out and being an absconder earlier in the morning he was taken into custody but subsequently on the same application he was granted anticipatory bail. In support of his submission he cited Said Qayyum v. Ghanishah and another 1990 PCr.LJ 428; Muhammad Aslam v.
The State 1989 PCr.LJ 2026; Abid alias Abi v. The State 1995 PCr.LJ 1558; Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621 and Ghulam Fareed v. The State and another 1990 SCMR 1403.
' It would be relevant to observe that warrant of remand is available on record but in fact the respondent No,1 was not remanded to jail. It appears that after completing the formalities, without taking any bail application under section 497, Cr.P.C. Bail was allowed to him on merits.
5. Learned counsel for the respondent No,1/accused submitted that on his oral request the same application was treated again as application for bail and then the impugned order was passed by the learned Sessions Judge. He further submitted that no specific role was assigned to the respondent/accused, therefore, on the same application he was entitled for pre-arrest bail. He also contended that once bail is granted by a Court of competent jurisdiction, cannot he cancelled, unless it is shown satisfactorily that the discretion exercised by the trial Court was in violation of the principles governing the bail matters . In support of his submissions, he relied upon Inatillah v. State 1997 PCr. 1366; Mola Bux v. Shadan and others 1997 PCr.LJ 1573.
6. The learned counsel for the State submitted that the complainant/applicant should have first moved the learned trial Court for cancellation of bail instead of straightaway coming to this Court. I have read and followed the cited case law (supra).
7. Bail is a valuable right, granted to an accused by the Court and its cancellation necessarily involves review of the decision already made Ordinarily, the High Court will not interfere with an order of bail granted by the Sessions Judge, but in appropriate cases bail can be cancelled by this Court, if it was granted arbitrarily or illegally and/or improperly by wrong exercise of judicial discretion even in the absence of supervening circumstances after grant of bail. It is needless to emphasise that justice has to be administered in a manner equal to the offender as well as faith of public in the administration of justice. While dealing with the bail application the learned Sessions Judge should have kept in view the basic principle of fundamental importance that justice should not only be done but manifestly and undoubtedly be seen to have been done. The record shows that after taking the respondent/accused in custody warrant under section 344, Cr.P.C. Was prepared whereby the Superintendent Central Prison Karachi was directed to produce the respondent/accused in the Court on 18-9-1998 at 8-30 a.m. But instead of sending him to judicial custody, on the oral request of the defence counsel the same bail application was again considered by the learned Sessions Judge for anticipatory bail. It is amazing that without seeking proper bail application the police papers were arranged and Mr. Mehmood Bhatti, the District Attorney without raising any objection as to the manner in which the request for bail was being considered, conceded to be grant of bail on merits. The record also indicates that after the bail was granted on the same day the operative part of the bail order was communicated by the Serishtedar of the Court to the Investigating Officer through the S.H.O./Kalakot Police Station, Karachi, for "information and compliance" although, the accused was not in police custody but was in the custody of the Court and admittedly no application for bail after arrest was submitted.
Legally speaking there is material difference between post arrest bail as contemplated under section 497, Cr.P.C. And anticipatory bail under section 498, Cr.P.C. (see Murad Khan v. Fazlesubhan and another PLD 1983 SC 82, Arif Matin Bhutta v.. State PLD 1984 Lahore 383. In my humble view provisions of section 498, Cr.P.0 could not be invoked after arrest of the accused. In such a situation the proper course to be followed is that the accused must seek remedy of bail by submitting proper application under section 497, Cr.P.C. Before the learned trial Court stating clearly the grounds on which bail is asked instead of relying on the application for pre-arrest bail which in the instant case had become infructuous after the respondent/accused was taken into custody as he was an absconder.
8. In view of the above reasons since the impugned order passed by the learned Sessions Judge, Karachi (South) was in utter disregard of the principles governing the grant or refusal of anticipatory bail, therefore, it is set aside on this ground and the application for cancellation of bail is allowed. The accused/respondent No,1 who is an absconder is taken into custody. The Superintendent, Central Prison, Karachi is directed to produce him before the learned trial Court on the date of hearing. However, the respondent No, 1/accused shall be at liberty to move proper application for bail under section 497, Cr.P.C. Which should be ,disposed of by any learned Additional Sessions Judge, other than learned Sessions Judge, Karachi South. By short order the application was allowed on 12-4-1999. The above are the reasons for the same.