1. ' 1 and 2 granted.
3. By this order we propose to dispose of the above four applications for pre-arrest bail.
2. ' Criminal Bail Application No,212 of 1998, has been preferred by one Jahanzeb son of Zahir Shah, who is accused of an offence under section 9(3) of the control of Narcotic Substances Act, 1997, pursuant to F.I.R. In Crime No,28 of 1997, registered at Police Station Bhitai Nagar, Hyderabad, dated 1-6-1997. Challan was submitted in the Court of Special Judge, Control of Narcotic Substances, Hyderabad and the matter is pending trial before the aforesaid Court as Sessions case No,106 of 1997.
3. ' Criminal Bail Application No,213 of 1998, has been filed by the same applicant, who is also accused of another offence under the same provisions of law pursuant to F.I.R. In Crime No,29 of 1997, lodged in the same Police Station on the same day. This matter has also been challaned before the same Court and is awaiting trial as Sessions Case No,107 of 1997 before the Same Court.
4. ' Criminal Bail Application No,214 of 1998, has been preferred by Orangzeb son of Zahir Shah, who is apparently a brother of applicant Jehanzeb mentioned above. He is also accused of an offence under section 9(3) of the Control of Narcotic Substances Act, pursuant to F.I.R, dated 10-7-1996, Crime No,45 of 1996, at Police Station Qasimabad, Hyderabad.
5. ' Applicants in Criminal Bail Application No,215 of 1998, are one Moosa Khan and the above mentioned Orangzeb. These applicants are accused of offences under Article 3/4 of the Prohibition (Enforcement of Hudood) Ordinance, 1979. The applicants were allegedly found to be in possession of 15 kg. Of charas. Challan, therefore, appears to have been submitted in the Court of Special Judge, Control of Narcotic Substances and the matter is pending trial as Sessions Case No,82 of 1995.
6. ' In all the four cases the applicants were shown to be absconders in the challans presented before the Court. It appears from the order of the trial Court dated 28-4-1998 that non-bailable warrants of arrest were issued against the applicants but could not be executed. However, applications for pre-arrest bail were preferred before the trial Court in April 1998, but were rejected by an identical order dated 28-4-1998 on the ground that the applicants did not appear before the trial Court and the Court came to the conclusion that the requirement of their physical presence, in the circumstances could not be dispensed with. Thereafter, the applicants preferred the above applicants before this Court.
7. ' The applicants have not appeared even today. The affidavits in support of these four applications have been filed by one Khanzada son of Khayal Mir, who claims to be a' relative" of the applicant.
8. ' Mr. Shoaib Shibli, learned counsel for the applicants, however, prayed that the personal appearance of the applicants may be dispensed with as they apprehended that they would be arrested before they reach the Court. He pointed out that he had made separate miscellaneous applications to this effect in each of the bail application.
9. ' Mr. Ghulam Nabi Soomro, leaened Additional Advocate-General on the other hand argued that physical presence of the applicants was a statutory precondition for entertainment of application for pre-arrest bail under section 498-A of the Cr.P.C.
10. ' It was suggested to Mr. Shoaib Shibli that he might consider not to press these applications and may apply for prearrest bail afresh after ensuring the applicants' presence in Court, but he stated that he would prefer to argue the application. However, when it was pointed to him furing the course of hearing that the only reported case where interim pre-arrest bail was granted in the absence of the applicant appeared to be that the Abdul Hameed Jatoi v. The State (1974 PCr.LJ 1032) and this was done in the rare and exceptional circumstances when that police was standing at all the gates of the Court ostensibly prevent the applicants entry. The facts of the applicant's case, however, are very different and apparently they had been evading the execution of process of the Court, which had issued several non-bailable warrants which remained unexecuted. At this, Mr. Shibli stated that the Court appeared to have made up its mind and he would not like to argue the matter further before this Bench. It was pointed out to him that all observations from the Bench are by their very nature always tentative and the Court is always open to be persuaded to a different view as has been recently observed by the Honourable Chief Justice of Pakistan.
11. Nevertheless, Mr. Shibli, insisted that he would not like to proceed before this Bench.
12. ' We regret to say that irrespective of the question of impropriety of the counsel's attitude we find it impossible to accede to Mr. Shibli's request/demand in view of the authoritative pronouncement of the Honourable Supreme Court in the case of Hamid Sarfraz v. Federation of Pakistan (PLD 1979 SC 991) to the following effect:- ' "It is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing and disposal of cases coming before his Court, and no litigant or Lawyer can be permitted to ask that his case be heard by a Bench of his choice."
13. ' Accordingly we proceeded to consider that question of maintainability of these applications on merits. It is indeed settled law established through several judicial precedents that the privilege of pre-arrest bail can only be availed of by a person who surrenders before that Court. Therefore, save in rare and exceptional circumstances that Courts have always insisting upon the physical personal appearance of an applicant for pre-arrest bail. Nevertheless apart from the above we find considerable force in the contention of the learned Additional Advocate-General that a person cannot be admitted to pre-arrest bail unless he is present in Court in view of the statutory requirement of section 498-A, Cr.P.C., which reads as under:- "498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc. 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 one 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 of direction."
14. (Under lining is ours)
15. ' It may be pertinent to mention that the aforesaid provisions were inserted in the Code through Act XIII of 1976 and after the decision of this Court in the case of Abdul Hameed Jatoi's case cited above. We are, therefore inclined to take view that after the enactment of the above provision, physical presence of the applicant in Court may not only be insisted upon as a matter of judicial propriety but is, in fact, a statutory precondition for the exercise of the power to grant bail.
16. ' In view of the legal position, we may observe that perhaps in an appropriate case where the arrest of the applicant is imminent for mala fide reasons, a Court may be pursuaded to depute its own guards to escort the applicant from outside the Court premises (but not from his house) as was observed by Wajihuddin Ahmad, C.J. (as his Lordship then was) in a some what different context in a recent unreported order passed in Criminal Bail Application No,28 of 1998. We, are nevertheless, clearly of the view that the applications before us do not warrant such extraordinary steps to be taken. Admittedly, the applicants have been challaned before a competent Court and have been evading warrants of arrest issued by such Courts. They are fugitives from law and such fugitives are not entitled to the concession of bail as has been authoritatively held by the Honourable Supreme Court in the case of Awal Gul v. Zawar Khan (PLD 1985 SC 402) and reiterated in the recent case of Sher Ali v. The State (1998 SCM R 190). They even lose the rights that may be available to other citizens under substantive and procedural law.
17. For the foregoing reasons, we find no merit in these applications and accordingly dismiss the same.