'Applicant/accused is involved in offences arising out of sections 506, 448, 147 and 148, P.P.C. In Crime No,78 of 1998 of Police Station Makki Shah, Hyderabad. He approached the Court of Sessions at Hyderabad for bail before arrest who instead of entertaining the same transferred it to learned Vth Additional Sessions Judge, Hyderabad. He declined bail vide the impugned order, dated 15-4- 1999 without touching the merits of the case on the short ground that since the challan has been submitted, the apprehension of arrest and humiliation at the hands of police is no more there. It was further observed that the accused/applicant should surrender before the Court where the case is pending and that the grant of bail before arrest will amount to frustrate the process of the Court of competent jurisdiction.
2. On earlier occasions, I heard Mr. S.U. Faruqui and the learned counsel appearing for the State but no proper assistance was rendered, therefore, on 26-8-1999, the following order was passed by this Court:-- "I have heard both the learned counsel at length. In my tentative view, the applicant appears to be entitled to grant of bail but there is one legal question which requires consideration. Pre-arrest bail was declined by learned Sessions Judge, Hyderabad on the short ground that challan has been filed and, therefore, there remains no more question of humiliation and apprehension of arrest and, thus, the proper forum is trial Court for seeking pre-arrest bail. However, both the learned counsel are not prepared on this point. At their request, adjourned to 31-8-1999 at 11-00 a.m. Meanwhile, Mr. Naraindas C. Motiani, Advocate, Supreme Court, is put on notice to assist the Court on the above point as amicus curiae."
3. Mr. Naraindas C. Motiani has contended that in view of section 498, Cr.P.C., it is only the High Court and the Court of Sessions which have concurrent jurisdiction to grant pre-arrest bail by virtue of the term "in any case" as used in the said section. It was contended that in the instant case, challan has been submitted showing the applicant/accused as absconder and that the moment he appears before the trial Court, he would be arrested. He has expressed his reservations on the question of jurisdiction in granting pre-arrest bail by a Judicial Magistrate. He has placed reliance on the following cases:--
(i) Sadiq Ali v. The State PLD 1966 SC 589,
(ii) Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003,
(iii) Gul Muhammad and others v. The State PLD 1959 (W.P.) Pesh. 49,
(iv) Rai Saheb Bishambharnath Tandon and others v. The King-Emperor AIR 1924 Oudh 435,
(v) Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 and
(vi) Jam Sadiq Ali v. The State 1989 PCr.LJ 1910.
4. Mr. Muhammad Saad Qureshi, learned counsel appearing for the State has supported the view of the learned Additional Sessions Judge and contended that despite citation of the above case- law, once a challan has been submitted, it is the trial Court with whom the jurisdiction to grant pre- arrest bail lies. Mr. S.U. Faruqui has referred to the case The Crown v. Khushi Muhammad PLD 1953 FC 170 which was considered in the cases of Muhammad Ayub and Sadiq Ali (supra). He has also referred to the case. Of Ghulam Sadiq v. The State 1989 PCr.LJ 2035. The last cited case is not relevant as in that case, the question of grant of pre-arrest bail by Special Judge, Anti-Corruption was involved.
5. There is no specific provision in the entire scheme of the Code of Criminal Procedure, 1898 for grant of pre-arrest bail. This practice is invoked and is being exercised by the superior judiciary of Indo-Pak for decades. The only provision which enables the High Courts and the Court of Sessions to grant pre-arrest is section 498, Cr.P.C. This practice has now extended to even grant of protective bail by the High Courts in order to enable an accused person to appear before the proper Court to obtain bail. Such practice has been impliedly upheld in the case The State v. Malik Mukhtar Awan 1991 SCMR 322. For further reference, see the case of Malik Mukhtar Awan v. The State 1990 PCr.LJ 617 where it was held by a former Chief Justice of this Court, Mr. Ajmal Mian, J. (as his Lordship then was) that the High Courts are competent to admit an accused person on interim protective bail. The purpose of granting bail is to release an accused from the custody of police and to deliver him into the hands of sureties who undertake to produce such accused person in Court whenever required to do so. This is what was held by a Full Bench of Federal Court in the case of Khushi Muhammad (supra).
6. In the case of Sadiq Ali (supra), the term "appear" as used in sections 496 and 497, Cr.P.C. Was discussed whereafter it was held, inter alia, that the word "appear" includes voluntary appearance of an accused in Court. This view was subsequently modified in the case of Muhammad Ayub (supra) where section 498, Cr.P.C. Was interpreted in the following manner:-- "The position that emerges then, would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Section 498, however, would be called in aid, before the Court of session and the High Court, ever where the Court is not seized directly of the proceedings in question and where no actual arrest has been made so far but anticipatory bail is asked for, e.g., where the case is still at a stage of investigation by the police or is pending in a subordinate Court. The power to gram such anticipatory bail would, thus, be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expressions like 'in any case' and ' any person' in section 498. The High Court or Court of Session would also of course have concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter of bail, under section 498, read with sections 496 and 497 as was held by the Federal Court in Khushi Muhammad's case and by this Court in Sadiq Ali's case." (Emphasis added).
7. Again, sections 497 and 498, Cr.P.C. Were considered by another Full Bench of Supreme Court in the Allied Bank of Pakistan Ltd. v. Khalid Farooq (supra) wherein it was observed that the powers of granting anticipatory bail are not available to the subordinate Courts. Following are the relevant observations:-- "The words ' a Court' in section 497 of the Code do not mean a trial Court. If the intention had been to restrict the section to the trial Court, the words ' trial Court' would have been used. It is only because of the words ' a Court' that the duty Judge or Magistrate grants bail to an accused, even though he is not the trial Court, when the accused is produced before him for remand. It is, thus, clear that under section 497 of the Code of the jurisdiction of the High Court and the Court of Session is attracted where there has been an actual arrest inviting its jurisdiction or any of these Courts are seized of the proceedings directly and that section 498 of the Code is attracted where no actual arrest has been made, but anticipatory bail is prayed for, irrespective of the fact whether these Courts are seized of the proceedings or not, which power, however is not available to the subordinate Courts." (Emphasis added).
8. The cases reported as Malik Mukhtar Awan and Gul Muhammad an another (supra); Rai Saheb Bishambharnath and others v. The King-Emperor (supra) and Ch. Muhammad Anwar Samma and another v. The State 1976 SCMR 45 pertain to the powers of the High Court under section 498, Cr.P.C. To grant pre-arrest bail to an accused who had not earlier approached the Court of Sessions. There are other cases namely Muhammad Sharif and 4 others v. The State 1979 PCr.LJ Note 7 at p.5 and Taj Muhammad v. The State PLD 1976 Pesh. 112 where pre-arrest bail applications were declined by the High Courts olLahore and Peshawar respectively on the ground that the Magistrates have ample powers to exercise pre-arrest bail. With most respect to last two cases, I am not inclined to follow the same for reasons to follow.
9. As I have already observed above there is no specific provision in the entire scheme of Cr.P.C. To either grant pre-arrest bail or protective bail but the same are being granted by the superior Courts in Pakistan as a matter of established practice and in order to further the cause of justice.
The only provision which enables this Court as well as the Court of Session is section 498 which says that the High Court and Court of Session shall be competent to grant bail in any case. Since the word "appears" does not include voluntary appearance before a trial Court, the concept that a Judicial Magistrate or for that matter a Magistrate could grant pre-arrest bail to an accused now appears to be a misconception of law. It is pertinent to note that in section 497, Cr.P.C. It is the word "released" which has been used while in section 498 the phrase "admitted to bail" has been used. It shows that the word "released" used in section 497 is for the person who is under detention. The situation in section 498 appears to be different where an accused could be admitted to bail in any case by the High Court or Court of Session irrespective of his actual detention. However, in section 498-A, Cr.P.C. Which was incorporated by Act XII of 1976 both the words. "released" and the phrase "admitted to bail" have been used. It is observed that the Courts are required to apply section 498- A, Cr.P.C. While exercising its jurisdiction' either under section 497 or 498, Cr.P.C. A joint reading of sections 497, 498 and 498-A, Cr.P.C. Indicates that all the bail applications arising after arrest are to be governed by sections 497 and 498-A while pre-arrest bails or protective bails are governed by sections 498 and 498-A, Cr.P.C. Section 498-A, Cr.P.C. Is reproduced as follows:-- "498-A. No bail to be granted to a person not in custody, Court or against whom no case is registered, etc.--- Nothing in section 497, or section 498 shall be deemed to required 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 released 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."
10. I am not inclined to agree with the views of learned Additional Sessions Judge the once a challan has been submitted, there remains in field no grounds of apprehension of harassment or illegal arrest. If an accused person has been involved for some ulterior motives or out of mala fides that state of affairs will continue irrespective of the fact whether he has been arrested or not or whether any final or interim challan has been submitted. If a person has been maliciously or falsely involved in a case, his harassm ent or humiliation will continue till he is acquitted by the Court. In such circumstances, learned Additional sessions Judge was not justified in law to refuse bail on such flimsy grounds.
10-A. In so far as merits of the case are concerned, it was contended that none of the offences are punishable with more than seven years. It was further contended that from the facts mentioned in the F.I.R. As well as in the challan there appears to be a dispute pertaining to the service of the applicant/accused. The complainant has assumed his charge under the orders of the Head Office which was allegedly declined by the applicant/accused for which the complainant lodged a report that the applicant/accused had attacked his office alongwith some other persons when he was at Karachi. There is no eye-witness to this incident. The F.I.R. Was lodged after a lapse of 30 days. All these facts prima facie support the allegations of mala fides and ulterior motive.
11. As a result of the above discussion, the interim order granting meanest bail on 19th April, 1999 is confirmed. Before parting with this order, I would like to extend my sincere thanks to the learned amicus curiae Mr. Naraindas C. Motiani for the valuable assistance rendered to this Court.