FATAH MUHAMMAD Versus STATE

Maulana Fateh Muhammad, petitioner herein, is Naib Amir, Jamat‑i‑Islami Punjab, Amir Jamat‑i‑Islami, Rawalpindi District, and a member of the Central Executive and Central Council of Jamat‑i‑Islami, Pakistan. The Police of Dora Ghazi Khan registered five cases under section 16(a) of the West Pakistan Maintenance of Public Order Ordinance, 1960, againssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssst him for having made speehes on 23rd of February 1973 in Dora Ghazi Khan City t on 24th of February in Vahova ; on 25th of February at Jampur; and on the 26 th of February at Muhammadpur and Rajanpur. 1n the petition, it was stated by the petitioner that a similar case had also been registered against him for the speeches he delivered on the 25 th of February 1973 at Marta Ahmadani. Learned counsel for the State, however, submits that no such case was registered against him. The petitioner was admitted to interim bail by my order dated the 6th of March 1973.

2. Learned counsel for the State submits that the applica tion merits to be dismissed on the short ground that the petitioner is not present in Court today. I find no force in the contention. The presence of the petitioner was necessary only on the first date of hearing because unless he had surrendered to the Court, the petition for bail under section 498, Cr.P.C. could not be considered. Having once surrendered, there was no obligation on him to be present in Court unless he had been so directed by the Court. The absence in such an event can result in the forfeiture of his bond but the Court cannot on that around decline to decide the petition on merits. Once the petition is admitted and notice is given, it has to be decided on merits. The contention that the petitioner should be present on each date of hearing, even if there was no direction by the Court, is not warranted by law.

3. It is next contended that the petitioner did not present the application for bail before arrest before the learned Sessions Judge in the first Instance. It is true that ordinarily an applica tion for bail before arrest should be presented to the learned Sessions Judge and it was so held in Nasir‑ud‑Din Shah v. State (P L D 1963 Lab. 516) Mazahir Hussain v. State (1970 P Cr. L J 188) and Nisar Ahmad v. State (P L D 1971 S C 174), I could have directed the petitioner to move the application before the Sessions Judge, but in the circumstances of the case when the petitioner did not belong to that place ; a number of cases had been registered against him, and that there was every apprehension of his being arrested before he could approach the learned Sessions Judge, I entertained the petition here. The petition cannot, on this ground, be dismissed at this stage. The contention is devoid of force.

However, I would like to observe that if the petitions for bail before arrest are moved In the High Court as a matter of routine, the jurisdiction of the Sessions Judge would become redundant. In fact, where certain factual enquiries are necessary for the decision of the application for bail, it should be heard by the Sessions Judge to whom this information can be readily made available.

4. Learned counsel for the State then submitted that the petitioner should be required to give an undertaking that he will not indulge in Insulting insinuation in the course of his public speeches if he is to make one In future. Learned counsel for the petitioner then relying on Mian Mahmud Ali Kasuri v. The State (P L D 1963 S C 478) contends that it cannot legally be done. The precise question has been considered by the Supreme Court in Hamza M. A. and another v. The State (Criminal Appeal No. 77 of 1972. In Petition for Special Leave to Appeal No. 239 of 1972, decided on 2nd November 1972). The following observa tions are worth special notice :‑

Learned counsel for the petitioner has argued that no restrictive conditions can be imposed while granting bail and he cited the case of Mian Mahmud Ali Kasuri v. The State in support of his contention. This judgment lays down that section 499, Cr. P. C. does not contemplate the incorporation of conditions in the bail bonds, but it does not say that the Courts have no powers while granting bail to make sure that the offences allegedly committed by the accused persons are not repeated by them.

The petitioners have invoked the special jurisdiction of this Court for grant of leave to appeal against the High Court's order refusing bail, and it is essentially a matter of discretion with this Court whether or not to grant this leave on a consideration of the circumstances of the case. It cannot be argued that this Court has no powers to lay down condi tions on which it would grant leave in a given case.

If grant of bail to an accused person pending his trial is to be construed as a free charter to him to repeat his offences with impunity, the very object of bail would be defeated. If liberty granted by the Court as abused, the Courts do have the powers to revoke that liberty by withdrawing or cancelling the order of the bail, and the argument that fresh breaches of law cannot prevail to defeat or dilute that power."

The offence of which the petitioner is accused is punishable neither with death nor transportation for life. The bail in such cases is a rule and refusal an exception. I would, therefore, confirm my order dated the 6 th of March 1973 whereby the petitioner was admitted to bail, subject to his giving an under taking that he will not indulge in abusive language or insulting insinuation in the course of his public speeches, if he makes one, for the sake of clean politics and for promoting healthy political traditions in the country.

Bail allowed.