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Criminal Miscellaneous No. 269-B of 1986, decided on 27th October,1986.
---Ss. 497(5) & 498--Pre-arrest bail, cancellation of--Additional Sessions Judge treating application as one after arrest and admitting accused to bail--Necessary distinction between pre-arrest and after-arrest bail to be kept in view--Additional Sessions Judge while dealing with pre-arrest bail, having had not applied his mind and not indicating whether he was dealing with pre-arrest or after arrest bail and passed impugned order in clear violation of law and principles dealing with pre-arrest and after-arrest bail, pre-arrest bail allowed was cancelled by High Court in circumstances.
Noor Muhammad Awan for Petitioner.
Malik Abdus Sattar Chughtai for Respondent No.1.
Farooq Bedar A.A.-G. for the State.
Mst. Nasreen Akhtar daughter of Alam Sher, resident of Thalla Noon, Tehsil and District Bhakkar has filed this petition under section 497(5), Cr.P.C. for cancellation of pre-arrest bail allowed to Fateh Sher son of Falk Sher by the Additional Sessions Judge which was later on confirmed by order, dated 28-8-1986.
The allegation against Fateh Sher is that on 19-8-1986 he tried to molest the petitioner.
The sole grievance of the counsel for the petitioner is that the Additional Sessions Judge treated the application as one after arrest and admitted the respondent to bail on this pretext.
I have gone through the impugned order with the help of the counsel for the petitioner as well as counsel for the respondent. After going through the order I asked the counsel for the respondent 'is there a word in the impugned order which suggests that the Additional Sessions Judge was aware of the fact that he was dealing with application for bail before arrest'.
Counsel for the respondent had no reply to this.
The A . A .-G . supported the application for cancellation of bail.
There are numerous authorities by Hon'ble Supreme Court of Pakistan and by this Court in which distinction has been made between pre-arrest and after arrest bail. This is a matter of regret and I am constrained to observe that the Additional Sessions Judge while dealing with the application for pre-arrest bail did not apply his mind. He passed the impugned order in clear violation of the law and the principles laid down by the Supreme Court of Pakistan as well as by this Court dealing with pre-arrest and after-arrest bail. This shows lack of application of judicial mind and carelessness on the part of the Additional Sessions Judge.
The impugned order is set aside. Petition is allowed. Bail is cancelled. The respondent shall be arrested forthwith and sent to jail.
S.A. Bail cancelled.
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