Rai Mumtaz Hussain Babar Versus State
Sultan Tanvir Ahmad, J.--- Through this petition, filed under section 498 of Code of Criminal Procedure, 1898 ( Cr.P.C ), the petitioner seeks pre-arrest bail in case FIR No. 09 / 2023 dated 03-06-2023 registered under sections 420, 468, 471, 161, 162 and 34 of Pakistan Penal Code, 1860 ( P.P.C ) read with section 5(2) of the Prevention of Corruption Act 1947, at Police Station Anti-Corruption, Lahore (the FIR ). Learned Court of Senior Special Judge, Anti-Corruption, Punjab, Lahore (the Special Court ) has refused pre-arrest bail to the petitioner, vide order dated 27.01.2025, in view of non-compliance of orders of this Court, order(s) passed by learned fora below and absence of the petitioner at different stages of the proceedings in pursuance of the FIR.
2. The learned amicus curiae and the learned counsel for two sides have provided their invaluable assistance and they have invited the attention of this Court towards different judgments. They have made deliberations if the petitioner can be extended the sought concession in view of rule of consistency, Articles 9, 10-A, 25 of the Constitution of Islamic Republic of Pakistan-1973 (the Constitution ) and the relevant provisions of Cr.P.C. The prosecution-side has highlighted the long absence of the petitioner and misuse of previous concessions given to him.
3. Admittedly, all others nominated in the FIR are presently on bail. Ch. Pervaiz Elahi was granted after-arrest bail vide order dated 20.05.2024. Muhammad Khan Bhatti was granted bail keeping in view the rule of consistency. The remaining accused persons have been extended pre-arrest bails by the learned Special Court and then this Court refused to cancel the bail vide order dated 07.03.2024.
4. In case titled Muhammad Atif v. The State and another 1 detailed discussions have been made with respect to the Articles of the Constitution and provisions of Cr.P.C that have been focused before me by Barrister Haroon Mumtaz and Barrister Haroon Dugal. It is held that the benchmark for applying the rule of consistency is considering attributed role in the concerned case and material collected in the investigation. Paragraph No. 6 of the judgment reads as under:-
6. The rule of consistency applied in bail matters is premised on the fundamental right to equality before the law guaranteed under Article 25 of the Constitution of Pakistan. This right to equality before the law ensures that persons similarly placed in similar circumstances are to be treated in the same manner. In other words, among equals the law should be equally administered; the like should be treated alike. Article 25 of the Constitution does not prohibit different treatment to persons who are not similarly placed or who are not in similar circumstances. To claim equality before the law an accused person must therefore show that he and his co-accused who has been granted bail are similarly placed in similar circumstances. In other words, he must show that the prosecution case, as a whole, against him is at par with that against his co-accused who has been granted bail, and not distinguishable in any substantial aspect. The rule of consistency is also pillared on Articles 4 and 10A of the Constitution ensuring that level playing field and fairness is maintained in adjudicating cases of co-accused. The right to liberty under Article 9 of the Constitution has to be extended fairly and without discrimination to an applicant seeking bail. The rule of consistency in bail matters is fundamental to ensuring fairness, reducing arbitrary decision-making, and maintaining public confidence in the criminal justice system. It's a key aspect of the rule of law, ensuring that all individuals are treated equally under the law.
In the above case after-arrest bail was refused on the basis of availability of sufficient incriminating material on record. While discussing the applicability of rule of consistency and doctrine of parity in criminal cases including bail matters, the Supreme Court in case titled Muhammad Nadim v. The State and another 2 encapsulated that where the incriminating and ascribed role to an accused is one and the same as that of the co-accused then the benefit to one should be extended to other on the principle that like cases should be treated alike. The learned Peshawar High Court in case titled Bashir Khan v. The State through Advocate-General, N.W.F.P. Peshawar and another 3 refused to apply rule of consistency in view of long absence and unexplained delay:-
5. The petitioner was well aware of the charge against him and he opted not to surrender before the law for sufficient long time. The abscondence is deliberate and unexplained which make his case distinguishable from his co-accused
5. There are several judgments including Shahzaib and others v. The State 4 case restricting the Courts to consider merits of the case in pre-arrest bail petitions, when explanation for the absence of the accused person in his first petition is not satisfactory 5 . Here it will be beneficial to reproduce paragraph No. 3 of Azam Saleem case.
We have recently held in Shazaib v. State that in case a pre-arrest bail petition is dismissed due to non-appearance of the accused in Court, under section 498-A, Cr.P.C., a fresh pre-arrest bail petition can be entertained only if it furnishes explanation for the absence of the accused before the Court on the date of the dismissal of the first pre-arrest bail petition. Once the Court is satisfied with the explanation given for the absence of the accused can it travel into the merits of the case. The relevant portion of the order passed in Shazaib case is reproduced hereunder for ready reference:-
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, Cr.P.C., 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 bail. 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 absence of the petitioner under section 498-A, Cr.P.C.; 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.
In order to examine the explanation given for the non-appearance of the petitioners in their second pre-arrest petitions, we called for the complete record of their second bail petitions from the High Court. In the petition of Azam Saleem the explanation furnished for the non-appearance of the petitioner in his first petition on 04.03.2021 was that his real sister had passed away. Perusal of the documents attached with the petition shows that the sister of the petitioner had passed away on 17.02.2021, whereas the bail petition was dismissed for non-prosecution on 04.03.2021. Additionally, no reason or justification was stated for non-furnishing of the bail bonds by the petitioner. In the petition of Shan Ali no explanation, at all, has been furnished in the second bail petition for his non-appearance before the Court on 09.02.2021, when his first pre-arrest bail petition was dismissed for non-prosecution due to his non-appearance.
(Underlining is added)
6. Ch. Pervaiz Elahi and the present petitioner obtained the conditional after-arrest bail from the Special Court. Upon failure of condition their bail was recalled by the Special Court. They approached this Court through a petition 6 , when it was observed that even if the release on bail based on condition is to be held improper, the accused persons cannot derive benefit from a part of the order that releases them on bail and criticize the other part whereby a condition is imposed, particularly when by not assailing the condition imposed they have accepted the same. Nevertheless, the petitioner and Ch. Pervaiz Elahi were permitted to file fresh bail before the learned Special Court. Mr. Abdul Samad focused on the following part of the said order and stated that the same has attained finality:-
It appears that the prosecution was compelled to file the application when the learned Magistrate, due to misunderstanding that some bail cancellation petition is pending before this Court, refused to comply with the order of the learned revisional-Court, which by then was also upheld by this Court as well. It is admitted before me that no such bail cancellation petition was pending in this Court. In my opinion, the petitioners through their conduct and by not assailing the condition embedded in the post-arrest bail, have accepted the same. This condition was imposed upon the petitioners after giving fair chance of hearing to the petitioners by the learned Special Court. The petitioners being fully satisfied with the condition opted not to challenge it. Now they cannot be allowed to turn around to state that fair chance of hearing is not granted when the learned Special Court, while expounding its own order, has enforced the condition.
14. For what has been discussed above, this petition is dismissed. However, due to peculiar circumstances of the case, the petitioners are not precluded from filing fresh bail application(s) before the learned Special Court
On account of above view adopted by this Court, Ch. Pervaiz Elahi approached the learned Special Court, however, his petition was declined. Resultantly, he filed Crl. Misc. No. 20737-B of 2024 and he was admitted to after-arrest bail vide order dated 20.05.2024. Somehow, the present petitioner despite above permission to approach the learned Special Court, never joined his co-accused. Muhammad Khan Bhatti (nominated in the FIR) was allowed after-arrest bail keeping in view the rule of consistency 7 . The remaining accused persons were granted pre-arrest bails and this Court refused to cancel the same 8 . It has been apprised that after recalling of conditional after-arrest bail by the learned Special Court, the petitioner filed protective bail. Vide order dated 13.10.2023 in Crl. Misc. No. 67616-B of 2023 another learned Bench of this Court granted protective bail to approach the Court of first instance until 18.10.2023. Instead of contacting the Court of first instance, the petitioner filed transit-bail before the learned Peshawar High Court. He was granted about twelve days to appear before the concerned Court in Lahore, vide order dated 01.11.2023. The petitioner filed his pre-arrest bail before the learned Special Court on 16.11.2023 and then the same was dismissed as withdrawn on 23.11.2023. After more than one year another pre-arrest bail petition dated 19.12.2024 was filed with certificate that as per instructions this is 1st petition on the subject before the Hon ble Court . This second pre-arrest bail was dismissed with observations already discussed in paragraph No. 1 of this judgment.
7. On 13.02.2025, while granting ad-interim bail, the petitioner was directed to explain the delay. No plausible explanation for not approaching the learned Special Court for such a long duration has been offered. The petitioner was specifically permitted by this Court to file a fresh bail petition, vide order dated 07.11.2023 already reproduced above. Mr. Amir Saeed has stated that the permission was construed as a permission to file pre-arrest bail. Even then it cannot be a justification of filing the pre-arrest bail petition after about two years of the above order. The second pre-arrest bail before the learned Special Court is filed after more than twelve (12) months of the dismissal of first one.
8. The noted facts undeniably amount to playing hide and seek with Courts. Although I have thought about considering the merits of the case but there is clear command of law settled by the Supreme Court in Shazaib and others , Azam Saleem and Rao Qadeer Khan cases (supra) that the Courts can travel to merits only upon satisfactory explanation given for the absence of the accused.
9. The rule of consistency is of no help to the petitioner because of the view adopted by the learned Peshawar High Court in Bashir Khan case (supra) to which I completely agree. Some cases are cited at bar including Qadeer Hussain Shah v. The State 9 which in my opinion are distinguishable because of above discussed facts and circumstances.
10. In the wake of above discussion, the ad-interim pre-arrest bail granted to the petitioner vide order dated 13.02.2025 is recalled and this petition is dismissed. However, the discussion is only to reach the conclusion of the pre-arrest bail. The same, therefore, shall not be taken into account or cause prejudice in subsequent stages of the case or while deciding after-arrest bail petition, if any filed by the petitioner.
JK/M-60/L Petition dismissed.
1 2024 SCMR 1071
5 Azam Saleem and another v. The State and others (PLD 2021 SC 894)
5(i) Inaam Ullah v. The State and others (PLD 2021 SC 892)
5(ii) Rao Qadeer Khan v. The State (PLD 1981 SC 93)
6 Ch. Pervaiz Elahi and another v. Special Judge Anti-Corruption and 2 others (W.P No. 69172 of 2023)
7 Muhammad Khan Bhatti v. The State and another (Criminal Misc. No. 32369-B of 2024)
8 The State v. Mukhtar Ahmad and 10 others (Criminal Misc. No. 79583/BC/2023)
9 2025 PCr.LJ 98