PLJ 2021 SC (Cr.C.) 317
[Appellate Jurisdiction]
Present:
Syed Mansoor Ali Shah and Amin-ud-Din
Khan, JJ.
SHAZAIB,
etc.--Petitioners
versus
STATE,
etc.--Respondents
Crl. P.
No. 1075-L of 2020, decided on 29.7.2021.
(Against
the order dated 28.09.2020 passed by the Lahore High Court, Lahore in Crl.
Misc. No. 39004-B/2020)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498-A--Pakistan
Penal Code, (XLV of 1860), Ss.
337-A(i)/337-F(i)(v)/337-L(ii)/337-U(i)--Pre-arrest bail--Dismissal of
pre-arrest bail due to non prosecution--Effect of--Fresh & second or
subsequent pre-arrest bail petition--Once a pre-arrest bail is admitted for
hearing and notice is given to state, it has to be decided on merits
notwithstanding absence of petitioner on date fixed for hearing--In case
petition is dismissed for non appearance of accused, petitioner can file a fresh
bail petition before same court provided that he furnishes sufficient
explanation for his non appearance in earlier bail petition and court is
satisfied with his said explanation--But if he fails to furnish any
satisfactory explanation, his second bail petition is liable to be dismissed on
account of his conduct of misusing process of court--Petitioners are free to
file fresh bail petition, if so advised, before High court by giving
explanation for their absence before court in their first bail petition and if
court is satisfied with their explanation, it would decide their petition on
merits--Appeal partly allowed.
[Pp.
319, 320 & 321] A, B, C & D
2021 PCrLJ 250; PLD 1973 Lah 874; 1974 PCrLJ 482; 1981 PCrLJ
61; 2000 PCrLJ 138; 2006 YLR 2058 ref.
Syed Farhad Ali Shah, ASC for Petitioners.
Mr. Humayoun Aslam, DPG a/w Muhammad Ashraf, S.I.
for State.
Raja Akhtar Nawaz, ASC for Respondent No. 2.
Date of hearing: 29.07.2021.
Order
Syed Mansoor Ali Shah, J.--Petitioners
seek leave to appeal against the order dated 28.09.2020 passed by the Lahore
High Court in case FIR No. 246 dated 25.04.2020 registered at Police Station
Yousaf Wala, District Sahiwal for offences under Sections
337-A(i)-F(i)(v)-L(ii)-U(i), 148 & 149 PPC, whereby the pre-arrest bail
petition of the petitioners has been dismissed for non-prosecution, as well
as, on merits.
2. As the petitioners did not
personally appear, inspite of the repeated calls, before the High Court, their
bail petition before the High Court
could not have proceeded further in
terms of Section 498-A, Cr.P.C. No reason has been given by the petitioners in
the instant petition before us regarding their non-appearance before the High
Court, and the petitioners have thus shown no legal defect in the impugned
order, for dismissing their pre-arrest bail petition due to their
non-appearance; this alone merits dismissal of the instant petition.
3. However, learned counsel for the petitioners submits that
the petitioners have approached this Court because the High Court has also decided
their petition on merits. In this backdrop, we deem it proper to underline the
import of Section 498-A, Cr.P.C. and explain how a pre-arrest petition is to be
dealt with in case the accused-petitioner does not make himself present in
Court at the time of hearing the petition.
4. After the insertion of Section
498-A1[1]
of the Code of Criminal Procedure, 1898 ("CrPC") if the accused,
seeking pre-arrest bail, is not present before the Court, the Court is not
authorized to grant bail to such an accused and therefore, the petition is
liable to be dismissed in the light of the said statutory provision. For
convenience, Section 498-A, Cr.P.C. is reproduced hereunder:
"498-A. No bail to
be granted to a person not in custody, in Court or against whom no case is registered,
etc.: Nothing in Section 497, or Section 498 shall be deemed to require
or authorize a Court to release on bail, or to direct to be admitted to bail,
any person who is not in custody or is not present in Court or
against whom no case stands registered for the time being and an order for the
release of a person on bail, or a direction that a person be admitted to bail,
shall be effective only in respect of the case that so stands registered
against him and is specified in the order or direction."
Section
498-A, Cr.P.C. creates a statutory fetter or a statutory pre- condition
requiring the presence of the petitioner in person in Court for the exercise of
jurisdiction by the Court for granting pre-arrest bail. In case the petitioner
(accused) is not personally present in Court, the Court is not authorized to
grant him bail and the petition is to be dismissed for his lack of presence in
Court. However, in case some explanation is furnished for his non-appearance,
the Court may, if it finds that explanation to be satisfactory, exempt his
presence for that day and adjourn the hearing of the petition for a short
period. The Court cannot, in the absence of the personal appearance of the
petitioner, travel further into the case and examine the merits of the case. In
fact the examination of the merits of the case in the absence of the accused
totally defeats the intent and purpose of the aforementioned statutory
provision. This is because once the Court proceeds to examine the merits of the
case, then the Court has the option to either dismiss or allow the bail
petition, while under Section 498-A, Cr.P.C. the Court is not authorized to
admit the accused to bail in his absence.
5.
We are cognizant of the fact that before the addition of Section 498-A in the,
Cr.P.C., the view of the High Courts was that once a petition for pre-arrest
bail is admitted for hearing and notice is given to State, it has to be decided
on merits notwithstanding the absence of the petitioner on the date fixed for
hearing the petition.[2]
However, after the addition of Section 498-A in the, Cr.P.C., there are
divergent views of the High Courts, on this point: one set of judgments still
retain to the said view,[3]
while the other set of cases hold the view that the petition for pre-arrest
bail is to be dismissed if the petitioner is not present in Court on the date
fixed for hearing the petition and it is not be decided on merits in his
absence, unless the Court exempts his presence.[4]
We approve the judgments of the High Courts noted above, which have considered
the change in the legal position after addition of Section 498-A in the,
Cr.P.C. and disapprove those that still retain the earlier view as they have
not taken account of the true import and meaning of Section 498-A, Cr.P.C.
6.
We have noted that the Lahore High Court, in Tariq Hanif v. State,[5]
has held that once a pre-arrest bail application is admitted and notice is
given to the State it should be decided on merits even if the accused fails to
put up appearance and has placed reliance on the judgment of this Court in Muhammad
Saleem Akhtar v. State[6]
for the said view. It is important to clarify that in the said judgment of this
Court, it was not clear whether the Court was dealing with a matter involving
pre-arrest or post-arrest bail; we, therefore called for the original file of
that case. Perusal of the record available in the file, particularly the order
of the High Court impugned therein, revealed that the petitioners before this
Court had initially filed post arrest bail petitions in the High Court. During
pendency of those petitions, the High Court admitted the petitioners to ad
interim post arrest bail. Subsequently on a date fixed for hearing of those
post arrest petitions the petitioners did not appear before the Court, and the
High Court dismissed their post arrest bail petitions for non-prosecution.
After that the petitioners filed pre arrest bail petitions in the High Court
which the High Court dismissed with the observation that they failed to explain
their absence in the previous post arrest bail petitions. It was in this
context that this Court in Muhammad
Saleem Akhtar's case observed:
“If the High Court considered it appropriate
or necessary for the accused to be present on each and every date of hearing,
it was required to have given them clear directions to remain present at the
fixed dates. This is evident from the record that it was not done-by the Court.
This may be the reason for the confusion which happened for the accused to
appear or not to appear before the Court on the relevant date. We are,
therefore, not satisfied with the reasons of the High Court to reject the bail
applications of the petitioners for non-prosecution. In this view of the
matter, bail application of the petitioners would be deemed to be still pending
adjudication on merits.”
The High Court
had dismissed the post arrest bail petitions of the petitioners for
non-prosecution and not their pre arrest bail petitions. The said
observations of this Court related to the ad interim bail granted in the post
arrest bail petitions and dismissal of those post arrest bail petitions for
non-prosecution, and not the pre arrest bail petitions. This aspect has not
been fully brought out in the recent judgment of Tariq Hanif's case.[7]
7.
It is also clarified that in case the petition is dismissed for non-appearance
of the accused in a pre-arrest bail matter under Section 498-A, Cr.P.C., the
petitioner can file a fresh bail petition before the same Court provided that
he furnishes sufficient explanation for his non-appearance in the earlier bail
petition and the Court is satisfied with his said explanation. But if he fails
to furnish any satisfactory explanation, his second bail petition is liable to
be dismissed on account of his conduct of misusing the process of Court
disentitling him to the grant of discretionary relief of pre-arrest bail.[8]
In the present case, the High Court could not have dismissed the petition on
merits, in addition to dismissing the same for non-prosecution due to the
personal absence of the petitioner under Section 498-A, Cr.P.C.; therefore, the
observations of the High Court regarding the merits of the case are not
sustainable and hereby set aside. The petitioners are free to file a fresh bail
petition, if so advised, before the High Court by giving explanation for their
absence before the Court in their first bail petition and if the Court is
satisfied with their explanation, it would decide their petition on merits.
8. It is also clarified that ad
interim bail granted in a pre- arrest application on the first hearing is to
simply ensure that the petitioner is present on all the subsequent dates of
hearing in the pre-arrest bail matter. Petitioner’s presence is, therefore,
required throughout the proceedings of the pre-arrest bail petition and the
fact that he appeared on the first date when ad interim bail was granted