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Criminal Petition for Special Leave to Appeal No. 299 of 1980, decided on 24th June, 1980.

(On appeal against the order dated 30‑4‑80 of the Lahore High Court passed in Criminal Miscellaneous No. 802/B/ 1980).

Criminal Procedure Code (V of 1898)-----

-----Ss. 498 & 498‑A‑Bail‑Pre‑arrest bail and bail after arrest‑ Based on entirely different principles‑‑Rejection of application for pre‑arrest bail, held, does not have any bearing on bail after arrest.[bail]

Date of hearing: 24th June 1980.

J‑Muhammad Hussain petitioner armed with a 12 bore gun and 6 others armed with various weapons are said to have attacked Bashir Ahmed and Gul Muhammad. The companions of the petitioner are said to have inflicted a number of blows on the two persons. An F. I. R. was registered under sections 302/307/325/149 and 148, P. P. C. on 16‑11‑79 at 6‑15 p. m.

2. The petitioner moved the learned Sessions Judge, Faisalabad, for bail before arrest but the same was rejected on 27‑11‑79. A similar application presented to the High Court was dismissed in limine on 9‑12‑79.

3. The petitioner was consequently arrested and he applied for bail after arrest alongwith some of his co‑accused. He was granted bail on the ground that though he is said to have been armed with a gun he has not used it and that only a lalkara has been attributed to it.

4. Bashir Ahmed moved the High Court for cancellation of the bail on the ground that Muhammad Hussain has not brought it to the notice of the learned Sessions Judge that pre‑arrest bail had been declined to him both by the High Court and the Sessions Court earlier.

5. The learned High Court cancelled the bail on 30‑4‑80. Hence this petition.

6. The learned Judge of the High Court came to the conclusion that Muhammad Hussain had approached "the learned Sessions Judge with dirty bands and, therefore, succeeded in obtaining a discretionary relief". He held that it was not an inadvertent omission. His lordship came to the conclusion that "the bail is liable to cancellation on the short ground that the respondent obtained the discretionary relief by approaching the learned Sessions Court with dirty hands and such tactics must not only be depreciated but effectively discouraged".

7. He also was of the opinion that since evidence was yet to be recorded it would be premature to hold that the case of the respondent is not covered by the principle of vicarious liability.

8. The application for cancellation of bail was thus allowed.

9. It is no time for us to go into the merits of the case or to say anything with regard to the vicarious liability or otherwise of the petitioner.

10. When the petitioner applied to the learned Sessions Judge for bail after arrest he did not disclose that his application for bail before arrest was rejected. We can, however, not lose sight of the fact that pre‑arrest bail and bail after arrest are based on entirely different principles and the rejection of an application for the former does not have any bearing on the latter.

We, therefore, do not see eye to eye with the learned Judge of the High Court on this matter and would accept this application and grant bail to Muhammad Hussain petitioner in the sum of Rs. 20,000, with two sureties in the same amount to the satisfaction of Assistant Commissioner, Faisalabad.

Bail granted.

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