ORDER SHEET
THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail No.S-370 of 2024
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
1. For orders on office objection "A".
2. For hearing of Bail Application.
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26.09.2024
Mr. Safdar Ali Ghouri, Advocate for the Applicants.
Mr. Khadim Hussain Khoso, Advocate for the Complainant.
Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
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O R D E R
KHADIM HUSSAIN SOOMRO, J.:- Applicants Mumtaz Ali alias Mumtaz, Imtiaz alias Imtiaz, Aijaz alias Aijaz, Zulfiqar Ali alias Zulfiqar and Faheem Ali alias Faheem who are on interim pre-arrest bail marked as absent today.
2. Learned counsel for applicants/accused submits that the F.I.R. bearing Crime No.190/2024, under section 302 P.P.C has been registered at Police Station A-Section, Shahadadkot against the applicants; therefore, they are unable to attend the Court. He submits that the absence of the applicants/accused is neither deliberate nor willful, but it is beyond their control. He, however, requests for exemption of absence of applicants/accused and submits that the applicants have a good prima facie case; therefore, the pre-arrest bail application of the applicants/accused may be heard and decided in their absence.
3 . Learned Additional Prosecutor General, assisted by learned counsel for the complainant, submits that the presence of the applicants in pre-arrest bail is very much essential. He further submits that the Court cannot, in the absence of the applicants, travel further into the case and examine the merits of the case.
4. I have heard learned counsel for the parties and scanned the material available on record. From the perusal of the record, it appears that all the applicants have remained absent; however, counsel for the applicants stressed to hear his arguments on merits in the absence of the applicants/accused though the applicants/accused after the grant of interim pre-arrest bail failed to appear before this Court. As per learned counsel, the applicants are nominated for another crime. The concept of pre-arrest bail has undergone an evolutionary process and has now acquired a clear structure. Section 498-A of the Code of Criminal Procedure (Cr.P.C.) currently governs the fundamental criteria for seeking pre-arrest bail. Now, for the sake of clarity, Section 498-A of the Criminal Procedure Code (Cr.P.C.) is reproduced below:
"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 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."
5 . A perusal of section 498-A of the Code of Criminal Procedure (Cr.P.C.), it becomes evident that the accused's appearance before the Court is a prerequisite for obtaining pre-arrest bail, and without his presence, pre-arrest bail cannot be granted. In this context, the reliance can be placed on the case of "Shazaib and Others v. The State (PLD 2021 SC 886). The relevant portion of the judgment is reproduced as under:-
"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 does not in any manner lessen the rigours of section 498-A, Cr.P.C. or absolve the responsibility of the accused from appearing in person before the court".
6. It is now firmly established that when a statute prescribes a specific manner for the performance of an action, it must be adhered to strictly, without deviation. Any attempt to carry out the action in a different manner would be deemed invalid. In support of this principle, reliance can be placed on the case of "Attaullah Khan v. Ali Azam Afridi and others" (2021 SCMR 1979).
7. The applicants may have got a good prima facie case on merits, but it is clarified that ad-interim bail was granted to the applicants/accused on the first hearing, and they were required to ensure their presence on each and every date of hearings, but they failed to do so. Accordingly and in view of the above, instant bail application is dismissed only on the grounds of lack of presence of applicants/accused in Court.
J U D G E