Muhammad Nasir & Others vs The State
This is a criminal miscellaneous application before the Sindh High Court seeking pre-arrest bail, which the applicants subsequently requested to convert into protective bail. The core legal question concerned whether a trial court should grant interim bail upon issuing notice on a pre-arrest bail application to protect the accused from imminent arrest. The Court held that pre-arrest bail applications are urgent in nature and, in normal circumstances, when notice is issued, interim bail ought to be granted to prevent arbitrary arrest pending the hearing on merits. Consequently, the High Court converted the proceedings into protective bail for a limited period of seven days to enable the applicants to surrender before the trial court. The key principle laid down is that the issuance of notice on a pre-arrest bail application necessitates the granting of interim protective or pre-arrest bail to shield the accused from arrest until the matter is decided on merits.
- Whether interim bail should normally be granted when a trial court issues notice on a pre-arrest bail application?
- Can a pre-arrest bail application be converted into a protective bail application upon the request of the applicants?
- What is the legal effect of issuing notice on a bail before arrest application without granting interim relief?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 3, Anti Money Laundering Act 2010
- Section 4, Anti Money Laundering Act 2010
1. Urgency is granted.
2. Deferred.
3. Granted subject to all just exceptions.
4. The applicants Muhammad Nasir, Muhammad Raheel Mubin and Christopher D. Cruz are present along with their counsel, Mr. Haider Imram Rizvi. Learned counsel for the applicants submits that an F.I.R. bearing Crime No.4/2018 has been registered at FIA, State Bank Circle Karachi under Sections 419, 420, 468, 471, 109 PPC read with section 5(2) PCA, 1947 & 3 & 4 Anti Money Laundering Act, 2010 wherein the names of the present applicants do not appear but in subsequent statements of prosecution witnesses their names have been incorporated with mala fide intentions.
Learned counsel submits that the present applicants had surrendered themselves before the trial court for grant of pre-arrest bail in respective Criminal Bail Applications, copies whereof are placed at pages 39 to 43 of the court file, but the trial court instead of passing any orders with respect to the grant or denial of bail has merely issued notice and the same was demonstrated from the Orders of the trial Court dated 16.07.2018 placed on record. It was submitted that as a consequence thereof the applicants are being pursued for arrest by the authorities. Therefore, the applicants were constrained to approach this Court for grant of pre arrest bail.
It was however submitted by the learned counsel that the applicants, also present in Court, would be satisfied if this pre arrest bail application may be converted into a protective bail application and the trial court be directed to pass appropriate orders in due consonance with the law .
Learned counsel demonstrated from the record that in identical circumstances, in a matter arising from the same crime, a Division Bench of this Court had granted the application of protective bail, vide order dated 26.06.2018 in CP D-4821 of 2018. It was contended that the case of the present applicants is on better footings of than that of applicant in the aforesaid matter as the applicant therein was an accused in the crime under discussion whereas the names of the present applicants are not even mentioned in the F .I.R.
We have given due consideration to this matter and are of the view that mere issuance of notice on a pre-arrest bail application does not address the issue of bail at all and on the contrary expose s the applicant to arrest prior to determination of whether the said applicant was entitled to the concession of pre-arrest bail or otherwise.
It was held in the case of Dr. Ghulam Murtaza and Another vs. The State reported as 2004 PCrLJ 917 that "Initially if a notice is issued on bail before arrest application, in normal circumstances the applicant is enlarged to interim bail. There is reported judgments to this effect that the application for bail before arrest is admitted for hearing the applicants are normally granted interim bail".
The ratio of the case of Saleh alias Muhammad Saleh vs. The State reported as SBLR 2007 Sindh 1403 is squarely applicable to the present facts and circumstances herein and the said judgment maintained that "It may be observed that bail before arrest applicatio ns are of urgent nature and interim pre-arrest bail is usually granted till application is heard on merits".
In view of the foregoing the nature of the present proceedings is hereby converted from a pre arrest bail to a protective bail, in the manner sought by the applicants.
Without touching the merits of the case, the applicants Muhammad Nasir , Muhammad Raheel Mubin and Christopher D. Cruz are admitted to protective bail for a period of 07 days from today on furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lac only) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. This order shall remain operative only for 07 days from today viz. 18.07.2018 and shall cease to exist on 24.07.2018 after Court hours or before it when the applicants surrender before the court concerned, whichever is earlier . In case the applicants fail to surrender before the trial court within the above period, then their bail bond shall stand forfeited.
The bail application stands disposed of in above terms.