SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Amin-ud-Din Khan

Crl.P.1075-L/2020
(Against the order dated 28.09.2020 passed by the Lahore
High Court, Lahore in Crl. Misc. No.39004-B/2020)

Shazaib, etc. ...….Petitioner(s)

Versus
The State, etc. …….Respondent(s)

For the petitioner(s): Syed Farhad Ali Shah, ASC.

a/w petitioners

For the State: Mr. Humayoun Aslam, DPG.

a/w Muhammad Ashraf, S.I.

For Respondent No.2: Raja Akhtar Nawaz, ASC.

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 CrPC. 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, CrPC
Crl.P No.1075-L/2020
2

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 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 CrPC 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, CrPC 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
CrPC the Court is not authorized to admit the accused to bail in
his absence.

1
Inserted by the Code of Criminal Procedure (Amendment) Act (Act XIII of 1976), S.4 (w.e.f.
15.04.1976)
Crl.P No.1075-L/2020
3

5. We are cognizant of the fact that before the addition of

Section 498-A in the CrPC, 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 CrPC, 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 CrPC 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 CrPC.

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. State6 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

2
See Fateh Muhammad v. State PLD 1973 Lah 874; Ahmad Raza Qasuri v. State 1974 P Cr. L J
482.
3
See Abdul Rehman v. State 1981 PCrLJ 61; Salima Bibi v. State 2000 PCrLJ 138; Abdul Rashid
v. State 2006 YLR 2058;Tariq Hanif v. State 2021 PCrLJ 250.
4
See Umra Khan v. State PLD 1980 Pesh 145; Shabbir Ahmad v. State PLD 1981 Lah 599 (FB);
Kalan Khan v. State 1982 PCr.LJ 149; Zeeshan Kazmi v. State 1997 MLD 273.
5
Tariq Hanif v. State 2021 PCrLJ 250
6
Muhammad Saleem Akhtar v. State PLD 1996 SC 735
Crl.P No.1075-L/2020
4

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 case7.

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 CrPC, 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 bail8. 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

7
Supra
8
Mukhtar Ahmad v. State (2016 SCMR 2064)
Crl.P No.1075-L/2020
5

absence of the petitioner under Section 498-A CrPC; 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 does not in any manner lessen the rigours of Section 498-
A CrPC or absolve the responsibility of the accused from appearing
in person before the court.

9. This petition is, therefore, converted into appeal and is

partly allowed by setting aside the impugned order to the extent of
observations on merits of the case, with the above observations.

Judge
Lahore,
29th July, 2021.
Approved for reporting
Iqbal Judge