Syed UBAID AHMED vs THE STATE
This matter concerns an application for the confirmation of interim pre-arrest bail granted to the Applicant, Syed Ubaid Ahmed. The core legal question was whether the Applicant, having repeatedly failed to appear before the trial court, remained entitled to the concession of pre-arrest bail. Upon review of the trial court's case diaries, the High Court observed that the Applicant had remained absent on 11 out of 15 scheduled hearings, frequently seeking condonation of absence, and that the trial court had already requested permission to initiate proceedings under Section 514 of the Code of Criminal Procedure 1898 due to the Applicant's abscondence. The Court held that the Applicant had misused the concession of bail through his persistent non-appearance and shabby conduct. Furthermore, the Court found that the essential ingredients for pre-arrest bail, such as mala fide intent or ulterior motives by the prosecution, were absent. Consequently, the Court recalled the interim pre-arrest bail order, noting that an accused who absconds or fails to cooperate with the trial process disentitles themselves to the equitable relief of pre-arrest bail.
- Does persistent non-appearance before the trial court constitute grounds for the cancellation of interim pre-arrest bail?
- Can an accused who has absconded from trial proceedings continue to benefit from an order of pre-arrest bail?
- Is the absence of mala fide or ulterior motives on the part of the prosecution a relevant factor in determining the entitlement to pre-arrest bail?
- Section 249-A, Code of Criminal Procedure 1898
- Section 514, Code of Criminal Procedure 1898
ORDER
1. ' The Applicant Syed Ubaid Ahmed was granted interim pre-arrest bail in the sum of Rs,1,00,000 vide order 10-5-2006. The matter was being adjourned from time to time. However, when it came up for hearing on 2-4-2007 learned counsel for the Complainant made a statement at the bar that except accused Ghulam Muhammad none, including the present Applicant, was appearing before the trial Court. Inthe circumstances, report was called from the trial Court. Learned counsel for the Complainant was also required to produce certified true copies of the case diaries.
2. ' On the next date of hearing viz. 9-4-2007 learned counsel for the Complainant produced certified copies of the case diaries of the trial Court. On the said date, arguments were partly heard. The perusal of case diaries revealed that on 18-7-2006 Mr. Fareed Ahmed Dayo advocate appeared before the trial Court and filed undertaking to appear on behalf of Applicant Ubaid and also produced copy of order granting interim pre-arrest bail to the Applicant. On the next date viz. 11-8- 2006 Applicant Ubaid did not appear and his advocate filed application for condonation of his absence. The absence was condoned for the said date, however last chance was given for his appearance. On 5-9-2006 again the Applicant did not appear and his advocate filed application for condonation of his absence. Order was passed on the application and the Applicant was required to attend the Court on the next date viz. 25-9-2006. On the next date again the Applicant was absent, as such B.Ws. Were ordered to be issued against him. It appears that on 5-10-2006 the Presiding Officer was busy in election work and the case was fixed before the Incharge Judge. On the said date Applicant appeared before the Court and his advocate filed application for condonation of his absence for the previous date along with Medical Certificate. He also filed application under section 249-A, Cr.P.C. On behalf of the Applicant, Case Diary of 6-10-2006 reveals that on the said date too Applicant did not appear before the trial Court. On 28-10-2006 the Presiding Officer was on-leave and the case was fixed before the Incharge Judge. On the said date Applicant was present so also on the next date viz. 14-11-2006. On 7-12-2006 Applicant was called absent and his advocate filed application for condonation of his absence. Case was adjourned to 2-1-2007. As the 2nd January, 2007 was declared Eid Holiday, as such the case was fixed on 3-1- 2007 on which-date the Applicant was absent. Application for condonation of his absence was.
3. Filed. On 23-1-2007 the Applicant was present and his absence for the previous date was excused.
4. On the next date i,e, 14-2-2007 the applicant was called absent and his advocate filed an application for condonation of his absence. On 19-2-2007, the applicant was again called absent.
5. On the said date his application under section 249-A, Cr.P.C. Was dismissed. On 6-3-2007, the 'applicant was again called absent and his advocate filed an application for condonation of his absence. Order was passed on the said application and the applicant was required to produce medial certificate. On the next date i,e, 27-3-2007, the applicant was called absent. His advocate filed another application for condonation of his absence, but the same was dismissed by the trial Court. Precisely the Applicant remained absent on 11 occasions out of 15 dates of hearing.
6. ' From thorough scrutiny of the case file, it appears that the trial Judge viz. The Vth Civil Judge and Judicial Magistrate, Malir Karachi vide his letter, dated 27-3-2007 had already informed that the applicant Ubaid after grant of interim pre-arrest bail by this Court, had absconded, he therefore requested for granting permission to deal with the matter in accordance with the provisions of section 514, Cr.P.C..However quite connivingly the said letter/reference was never placed before the Court by the Office.
7. ' Even today the. Applicant is absent. Learned counsel for the Applicant has moved an application for condonation of his absence, on the ground that he is sick. The prayer is out of consideration, as the ground is vague, and' not supported by any material, coupled with the obviously shabby conduct of the Applicant.
8. ' In view of the above, it is crystal clear that the applicant has misused the concession of interim pre-arrest bail granted by this Court by avoiding to appear before the Trial Court. There is strong presumption that he has absconded. By his own conduct the Applicant has disentitled himself of the discretion concerning pre-arrest bail.
9. ' Looking to the other facts, it may be stated that neither the F.I.R. Shows that the case against the Applicant was based on ulterior motives, or the prosecution has been initiated to disgrace or humiliate him for mala fide reasons, nor any material has been placed on record to presume enmity or even hostility with the Complainant. According to the contents of the F.I.R. The accused was even previously not known to the Complainant. The ingredients for grant of pre-arrest bail are otherwise conspicuously missing.
10. ' In the given circumstances, the order, dated 10-5-2006 whereby the Applicant was granted interim pre-arrest bail is recalled. Let notice issue to surety. Trial Court be informed to proceed against the Applicant/accused in accordance with law.