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(From the orders dated 8‑9‑1985 and 17‑9‑1985 of the Lahore High Court passed in Criminal Petition No. 2122/B of 1985).

(a) Constitution of Pakistan (1973)‑

‑ Art. 185(3) ‑ Criminal Procedure Code (V of 1898), S. 498 --Penal Code (XLV of 1860), Ss. 302/34 & 307/34 ‑ Pre‑arrest bail‑ Leave to appeal granted to complainant to examine whether High Court had justifiably exercised discretion in favour of accused in granting him pre‑arrest bail in a case registered under Ss. 302/34 & 307/34, P. P. C.

(b) Criminal Procedure Code (V of 1898)‑

----S. 498‑Penal Code (XLV of 1860), Ss. 302/34 & 307/34‑‑Pre arrest bail, grant of‑Conduct of accused‑Accused found guilty of suppression of material facts for which no plausible explanation was forthcoming Such misrepresentation or suppression was likely to result in grave miscarriage of justice apart from its being open to great abuse by parties‑Person indulging in such suppression of facts, held, could not be allowed to reap its benefits or to enjoy its results‑Order of High Court granting pre‑arrest bail to accused was set aside and bail was cancelled.

Q. M. Salim, Senior Advocate Supreme Court assisted by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Appellant.

Malik Rab Nawaz Noon, Advocate Supreme Court for Respondent No. 1.

Mian Inamul Haq, Advocate Supreme Court with Rao M. Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing : 16th February, 1986.

SHAFIUR RAHMAN, J.‑

Leave to appeal was granted to the complainant to examine whether the High Court had justifiably exercised discretion in favour of respondent Mubarik Shah in granting him pre‑arrest bail in a case registered against him and a few others under sections 302/34 and 307/34, P. P. C., vide F. I. R. No. 242 dated 27‑8‑1985 P. S. Sadar, Faisalabad.

2. The case has not come up for consideration on merits but on the allegation that in obtaining bail before arrest the respondent misrepresented and suppressed material facts and the discretionary relief should not have been provided to him in the background of his own conduct. His conduct of which a grievance is made is that he first of all applied for bail before arrest before a learned Additional Sessions Judge, Faisaladad, who without granting him ad interim bail before arrest gave notice to the State and called for the record for 5th of September, 1985. This happened on 31‑8‑1985. He thereafter, filed another application in the Court of another Additional Sessions' Judge for bail before arrest and in that he expressly mentioned that he had not filed any other application. This application was actually filed the very next day to the one in which notice had issued for 5th of September, 1985. He obtained on the same day an interim order of bail before arrest and notice issued and the record was called for 3rd of September, 1985. He did not appear in the first application in which date was given without ad interim order of bail for 5th of September, 1985, and the second application in which after giving him ad interim bail the matter was to come up on 3rd of September, 1985. The result was that both the applications on the for non‑appearance or in default.

3. On the 5^th of September, 1985, the respondent filed an application in the Lahore High Court for bail before arrest. He mentioned the antecedent facts as hereunder:

That the petitioner applied for bail before arrest before the Sessions Judge Faisalabad which was allowed by the Additional Sessions Judge vide his order dated 1‑9‑1985. The case was fixed for 3‑9‑1985. The petitioner went to attend the Court on the day fixed but finding the police and the complainant party all around the Court premises, the petitioner did not appear. The learned Additional Sessions Judge cancelled the bail of the petitioner. Hence this application before this Hon'ble Court. In fact all the Loonas of Chak No. 215/R.B. and the police had made it impossible for the petitioner to safely enter the Court room."

The matter came up before the learned Judge on 8th of September, 1985, when he was admitted to ad interim bail before arrest which was to last till 17th of September, 1985, for which date notice issued to the State. On the 17th after hearing the arguments, the interim bail before arrest was confirmed.

4. Mr. Rab Nawaz Noon, Advocate, who appeared for respondent No. 1, admitted that neither in the second application filed before another learned Additional Sessions Judge nor in the application filed in the High Court any mention was made of the first application for bail before arrest in which ad interim bail had not been granted and notice to State had issued for 5th of September, 1985. He is unable to account for such a suppression or omission. As regards the second application, it is stated that it was mentioned in para. 3 of the peti tion for bail before arrest which has been reproduced. above in extenso.

5. After hearing the learned counsel for the appellant and the respondents, we consider that respondent No. 1 has been guilty of suppres sion of material facts for which no plausible explanation is forthcoming, Such a misrepresentation or suppression is likely to result in grave miscarriage of justice apart from its being open to great abuse by the parties. A person indulging in it cannot be allowed to reap its benefits or to enjoy its results. In the circumstances, we accept the appeal, set aside the order of the High Court, cancel the pre‑arrest bail of the respondent and direct that he shall surrender and be taken into custody.

6. This order will, however, not preclude him from moving petition for bail after arrest and its being dealt with on its own merits.

M. B. A. Bail cancelled.

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