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Writ Petition No. 5516 of 1986, decided on 13th December, 1986.

--Art. 199-- Criminal Procedure Code (V of 1898), S 498--Penal Code (XLV of 1860), Ss. 148, 440, 447 & 506/149-- Quashing of order--Accused granted ad interim pre-arrest bail--Accused present before Court on date fixed for confirmation of bail but co-accused absenting themselves- Application of co-accused dismissed but for accused adjourned to next date--Police arresting accused on same date--Sessions Judge, holding application of accused as infructuous due to his arrest by police- Prosecution candidly not supporting order of Sessions Judge--Petition for pre-arrest bail, held, could not be rendered infructuous due to illegal arrest of accused--Order granting ad interim bail would subsist and position obtaining before illegal arrest of accused would be reinstated- Order of Sessions Judge quashed in circumstances.

Aqil Mirza for Petitioner.

Najamuz Zaman, Asstt A.-G. for Respondents.

Date of hearing: 13th December, 1986.

The facts, necessary for the disposal of this petition, are that a case under section 440/447/506/148/149, P.P.C. was registered on 2-8-1986 with Police Station, Phalia against the petitioner and other persons. These accused persons then submitted an application for pre-arrest bail in the Court of Syed Ejaz Hussain Rizvi, Additional Sessions Judge, Gujrat and vide order, dated 8-11-1986, the petitioner and his co-accused were granted' ad interim pre-arrest bail petition was fixed for hearing on 29-11-1986. On this date of hearing, Muhammad Sharif, petitioner appeared while his co-accused the other petitioners before the learned Additional Sessions Judge, Gujrat, failed to attend the Court. The Investigating Officer also attended the Court on this date of hearing. On account of non-appearing; of these accused persons, the pre-arrest bail petition to their extent was dismissed. As regards Muhammad Sharif, petitioner, the pre-arrest bail petition was adjourned to 16-12-1986. Muhammad Sharif, petitioner was, however, arrested by the Investigating Officer the same day. The petitioner is presently detained in Sub-Jail Mandi Bahauddin. Thereafter, the petitioner submitted an application to the learned Additional Sessions Judge, Gujrat seeking his release from the Sub-Jail as the order granting pre-arrest bail to him still was operative. The learned Additional Sessions Judge, vide his order, dated 3-12-1986 refused to issue direction prayed for as he was of the view that with the arrest of the petitioner, the bail application was rendered automatically infructuous. Facing this situation, Muhammad Sharif petitioner has challenged the order, dated 3-12-1986 of the learned Additional Sessions Judge by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan.

2. I have heard the learned counsel for the petitioner and Mr. Najamuz-Zaman learned Assistant Advocate-General on behalf of respondents and the State learned Assistant Advocate-General frankly and candidly conceded that the impugned order is not sustainable in law as the pre-arrest bail petition did not become infructuous in view of the fact that the order granting ad interim pre-arrest bail still subsists. I am also of the view that despite the illegal arrest of the petitioner, pre-arrest bail petition has not been rendered infructuous. The unilateral and unauthorised action of the Investigating Officer cannot be accepted as a fait accompli, to deprive a citizen his liberty and freedom. The learned Additional Sessions Judge was, therefore, not right in considering that he was left with no power or jurisdiction to proceed with the application and to dispose it of on merits. The citizens will be deprived of the legal protection if the Courts as guardian and protector of the rights of the free citizens fail to act in curbing the illegal and wanton action of the police. It is unfortunate that the petitioner had to approach this Court for seeking compliance of the order passed by a Court of competent jurisdiction.

3. The bail granted to the petitioner by the learned Additional Sessions Judge still subsists and the bail bonds furnished also stand. The position obtaining before the illegal arrest of the petitioner on 29-11-1986 must, therefore, be reinstated. For the reasons given above the order, dated 3- 12- 1986 of the learned Additional Sessions Judge, Gujrat is quashed. The petitioner shall be released forthwith from the Sub-Jail, Mandi Bahauddin. The petitioner is, however, directed to appear on 16th December, 1986 before Syed Ejaz Hussain Rizvi, Additional Sessions Judge, Gujrat when his pre-arrest bail petition will be disposed of on merits in accordance with law. Respondent No. 3, Superintendent, Sub -Jail, Mandi Bahauddin will be informed of this order by learned Assistant Advocate-General on telephone. This petition stands disposed of in the above terms.

S.A. /M-141/L. Order quashed.

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