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Criminal Petition for Leave to Appeal No. 4‑K of 1986, decided on 6th April, 1986.

(On appeal from the judgment of the High Court of Sind, dated 16‑12‑1985, in Cr. B.A. No. 1448 of 1985).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185‑‑Criminal Procedure Code (V of 1898), S. 497‑‑Penal Code (XLV of 1860), S. 302/394/34‑‑Cancellation of pre‑arrest bail‑‑High Court, had by an earlier order dismissed application of accused/ respondent for pre‑arrest bail on basis of detailed reasoning while Supreme Court had upheld same‑‑Case sent up before Military Court where accused admitted to bail‑‑Military Court again transferred case to civil Court‑‑Held, if respondents were admitted to bail by Military Court, and case was again transferred to civil Court, proper course for respondent/ accused was to go before trial Court and obtain bail there from as there was no scope left for respondent /accused to repeat prayer for bail before High Court‑‑Respondent having failed to go to trial Court, bail granted to accused/ respondent was cancelled by Supreme Court in circumstances.

High Court had by its earlier order dismissed the application of the accused/ respondent for pre‑arrest bail on the basis of detailed reasoning incorporated in the said order. This order having been brought before Supreme Court was upheld. The result was that the plea of the respondent that he was entitled to the concession of bail in anticipation of arrest was finally rejected and the only course open to him was to surrender before the trial Court and apply for bail under section 497, Cr.P.C. This was the position when allegedly the case was sent up before the Military Court. Held: If the respondent was admitted to bail by the Military Court and the case was transferred to the civil Court, the proper course for the respondent was to go before the trial Court and obtain bail therefrom. But there was no scope left to repeat the prayer for bail before the High Court.

The bail granted to respondent was, therefore, cancelled by Supreme Court.

However, it was open to the respondent to approach the trial Court for grant of bail under section 497, Code of Criminal Procedure on the grounds urged before the High Court in the second application for pre‑arrest bail and/or any other grounds available to him, and on such an application being made, the trial Court should deal with it on its own merits, according to law.

Muhammad Hayat Junejo, Senior Advocate Supreme Court and Muzaffar Hassan, Advocate‑on‑Record for Petitioner.

A.K. Brohi, Senior Advocate Supreme Court; Azizullah K. Shaikh, Advocate Supreme Court and S.M. Abbas, Advocate‑on‑Record for Respondent No.2.

Abdul Wali Makhdoom, Advocate Supreme Court with A.S.K. Ghoury, Advocate‑on‑Record for Respondent No.3.

Date of hearing: 6th April, 1986.

By this petition for leave to appeal complainant Hap Ali Bux seeks the cancellation of pre‑arrest bail granted to respondents Imam Bux and Ismail by the learned Chief Justice of the High Court of Sind by his order, dated 16th December, 1985.

On 30th August, 1982, at 6‑30 a.m. deceased Karam Khan brother of the petitioner was murdered. On the information lodged by the petitioner a case under section 302/394/34, P.P.C. was registered against the aforesaid respondents and one Amir Bux at Daur Police Station. The petitioner implicated the aforesaid three accused to have attacked the deceased alleging that respondent Imam Bux and co‑accused Amir Bux were armed with guns while respondent Ismail was carrying a rifle. The fatal injury was attributed to respondent Imam Bux.

The said respondents could not be arrested by the police, however, they appeared before the learned Chief Justice of the Sind High Court and prayed for pre‑arrest bail. The learned Chief Justice upon examining the case papers found that the prosecution version was supported by witnesses and the injuries sustained by the deceased were verified by the medical officer to be the result of gun shots fired at deceased. Further the learned Chief Justice found that as respondent Imam Bux was admittedly at Quetta, there was good reason to think that the respondent were evading arrest. Finally as the charge‑sheet had not been submitted, the learned Chief Justice declined to go into the merits of the case as to reliability of ocular testimony. The plea of respondent Imam Bux of alibi on the basis of medical certificate issued by a doctor at Quetta was also not found sufficiently reliable to extend the benefit to the said respondent. Accordingly by his order, dated 5th December, 1982, the learned Chief Justice recalled the earlier order granting interim bail to the respondents and dismissed their application or bail, with an observation that after the charge‑sheet is submitted in Court it will be open to the trial Court to consider the bail application of the said respondents on the merits of the case.

Respondent Imam Bux and his two sons respondent Amir Bux and Ismail then sought to challenge the order passed by the learned Chief Justice refusing to grant them pre‑arrest bail in a petition for leave to appeal before this Court (Cr.P.L.A. No. K‑68 of 1982). But this petition was dismissed, vide the order, dated 13th December, 1982, leaving it open to the respondents to apply for bail after the challan is put up before the trial Court.

On a fresh application for grant of bail in anticipation of arrest the learned Chief Justice of the Sind High Court was persuaded to allow bail to respondents 1 and 2 by his order, dated 16th December, 1985. Hence this petition.

We have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the petitioner, as well as Mr. A.K. Brohi learned counsel or the first two respondents and Mr. Abdul Wali Makhdoom learned counsel appearing for the State.

The main grievance of the petitioner is that the accused/ respondents having remained absconding for three years were not entitled to the concession of bail before arrest, particularly when their case was considered on merits and rejected by the learned Chief Justice by his earlier order, dated 5th December, 1985. Learned counsel for the petitioner strongly urged that the learned Chief Justice had no substantial ground for taking a different view in the subsequent order passed by him. He pointed out that the learned Chief Justice was unduly impressed by the fact that the accused/ respondents were not arrested for three years as a ground for extending the benefit of bail to them, whereas this very ground militated against entertaining of the application for pre‑arrest bail, in that, apprehension of arrest is a sine quo non for the assumption of jurisdiction under section 498, Cr.P.C.

On the other hand Mr. A.K. Brohi strongly supported the impugned order. By referring to the documentary evidence he submitted that the case registered against the accused /respondents was not sent up for trial to a civil Court, but the challan was submitted before a Military Court. According to the learned counsel the accused/ respondents voluntarily appeared before the Military Court and were not taken into custody but allowed to remain free on personal recognizance. Learned counsel forcefully contended that this amounted to grant of bail to the accused/ respondents by the Military Court which was seized of the case as a trial Court in respect of the report registered against the accused/respondents. Subsequently, however the relevant military Authority ordered the case to be transferred to the civil Court for trial and the case is now pending before the Court of Sessions, Nawab Shah. He further referred to a direction given by the C . M . L. A . to register a case at the instance of the accused/ respondents against the complainant party. All these circumstances, learned counsel contended, were rightly taken into consideration by the learned Chief Justice for passing the impugned order granting pre‑arrest bail to the accused/ respondents.

Mr. Abdul Wall Makhdoom appearing for the State supported the petition and argued that the police had taken steps and made efforts to secure the arrest of the respondents but they had absconded and evaded the arrest during the course of the last three years.

After hearing the learned counsel at length we are of the view that this petition can be disposed of on a preliminary point and, therefore, do not propose to enter into the merits of the case. In our opinion the position that emerges from the foregoing narration of facts is that the learned Chief Justice had by his earlier order dismissed the application of the accused /respondents for pre‑arrest bail on the basis of detailed reasoning incorporated in the said order. This order having been brought before this Court was upheld. The result was that the plea of the aforesaid respondents that they were entitled to the concession of bail in anticipation of arrest was finally rejected and the only course open to them was to surrender before the trial Court and apply for bail under section 497, Cr.P.C. This was the position when allegedly. the case was sent up before the Military Court. If the respondents were admitted to bail by the Military Court, and the case was transferred to the civil Court, the proper course for the respondents was to go before the trial Court and obtain bail there from. But there was no scope left to repeat the prayer for bail before the High Court.

In the circumstances, we convert this petition into an appeal, and allow it. The result is that the bail granted to respondents 1 and 2 stands cancelled.

However, it is open to the respondents 1 and 2 to approach the trial Court for grant of bail under section 497, Code of Criminal Procedure on the grounds urged before the High Court in the second application for pre‑arrest bail and/or any other grounds available to them, and on such an application being made the trial Court shall deal with it on its own merits, according to law.

M.B.A. Bail cancelled.

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