MUHAMMAD ASLAM vs THESTATE

ORDER

Muhammad Aslam son of Sher Muhammad is accused alongwith four others of offences under section 302/209, P. P. C. For the murder of Fateh Muhammad. He applied for pre-arrest bail before the learned Sessions Judge, Sargodha. The application came up before the learned Sessions Judge, on 4-4-1974. He issued notice to the State and called for the records, and ordered the case to be fixed on 2-5-1974, i.e. after about one month, but declined to grant interim bail to the petitioner.

Muhammad Aslam petitioner has approached this Court only for the grant of interim bail till such time as the matter is finally heard and disposed of by the learned Sessions Judge, Sargodha on 2- 5-1974.

2. The learned counsel for the petitioner contended that the very purpose of application for bail before arrest is defeated if interim bail is not granted, as the petitioner is likely to be arrested before the next date of hearing.

3. I am inclined to agree with this contention. The very purpose of an application for bail before arrest is to avoid the humiliation of being arrested by the police. Grant of bail before arrest is rare, but Courts do grant bail before arrest where it is felt that the petitioner has probably, been falsely involved in a case and is likely to suffer irreparable injury to his dignity, respect and reputation. As such, once an application for bail before arrest is `admitted' by a Court for regular hearing, it should, in fitness of things, grant interim bail to the petitioner so that he is not arrested in the meanwhile, because otherwise there is no point in entertaining and admitting his application.

4. It may be mentioned that even in a civil case i.e. E. A. Evans v. Muhammad Ashraf (1968 Law Notes SC 81where an appeal was filed against the orders of the Additional District Judge, Lahore in a Rent Restriction case and the learned Judge of the High Court bad ordered: "Records. No stay at this stage."

Mr. Justice A. R. Cornelius, the then Chief Justice of Pakistan while admitting the petition for Special Leave to Appeal, observed as follows:----- "It is clear that the appeal was not being dismissed forthwith, so that the question of retention of the premises was a live issue before the Court. In the circumstances, refusal to stay ejectment would appear, prima facie, to be inconsistent with the order calling for records."

5. I feel that the learned Sessions Judge bas erred in not granting interim bail to the petitioner in this case, after admitting his application for regular hearing. As observed by Mr. Justice Ghulam Safdar Shah (now the Chief Justice of Peshawar High Court) in Mazhahir Hussain v. State (1970 P Cr.

L J 188), that in order to avoid the subjection to arrest and harassment of many deserving applicants, it would be more in accord with the principles ofadministration of criminal justice, that if the learned Sessions Judge, on scrutinising the application, is not satisfied about-its merits, he should reject instantly so that aggrieved person can seek his remedy in the superior Courts, without any let or hindrance.

6. I am also surprised by the fact that the learned Sessions Judge after declining to grant interim bail to the petitioner fixed the matter for regular hearing after about a month (28 days to be exact).

In such cases the matter should be fixed for final hearing at the earliest possible date, because in cases of bail-before-arrest, the accused persons should not be permitted to remain at large for a long period, as there is a danger of their destroying the evidence or suborning the witnesses, and secondly because the "sword of Damocles" should not be kept hanging on the petitioner's head for an unnecessarily long period. This is specially so in cases where interim bail is not granted.

7. In view of what has been observed above I confirm the interim bail granted to the petitioner on 9-4-1974, till 2-5-1974.