Ch. MUHAMMAD ANWAR SAMMA AND Another vs THE STATE

ORDER

1. HAMOODUR RAHMAN, C. J.--The petitioner No. 1 In this case is a Member of the Provincial Assembly of the Punjab. He has also been an adviser and a Minister in the Province of the Punjab. The petitioner No. 2 -is his domestic servant. A case has been registered against them and four others on the 28th May. 1915, at the Sadar Police Station, Gujrat, in pursuance of an F. I. R. Lodged by one, Mohammad Aslam. In this report, the offences alleged by the complainant are under sections 148, 365, 505, read with 149, P. P. C. But, subsequently, as a result of the medical report, another offence under section 307; P. P. C. Has been added by the investigating agency.

2. On coming to know of the registration oaf the said case through newspaper reports, the petitioners applied to the `Ilaqa Magistrate' for a copy of the F. I. R. Their application was returned on the 30th May, 1975, with the remarks that the copy of the. F. I. R. Had not till then been received by that Court.

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4. Thereafter, on the 31st May, 1975, they moved the High Court by Cr. Misc. No. 2147/13 of 1975, under section 498, Cr. P. C. For bail before arrest alleging therein, inter alia, that they were unable to move the Sessions Court, Gujrat, In the first instance, because, they had come to know from reliable sources that a special police party had been deputed outside the said court with specific directions to arrest the petitioners before a they can enter the Court room.

5. Apart from this, it was also alleged in the said petition that there was a political background to this case and the petitioner No. 1 had been involved in a number of cases and had been forced to apply to the High Court for bail before arrest by Cr. 'Misc. Application No. 3542-B/74, No. 3645-B/74 and No. 4255-B/74. He was also involved in a murder case and, in that case too, the Lahore High.

6. Court had granted him bail before arrest in Cr. Misc, No. 4053-B/74.

7. The newspaper reports about the incident, in respect of which the present information has been lodged, have also given it a very sensational tinge by mentioning the name of a Judge of this Court and that of an Additional Sessions Judge, Rawalpindi, as persons very closely connected with the complainant. In these circumstances, the petitioners also apprehended that the Sessions Judge, Gujrat, may feel embarrassed and be prejudiced against them.

8. Notwithstanding this, a learned single Judge of the Lahore High Court has, on the 2nd June, 1975, taken the view that "there is no sufficient ground for making the petition directly to the High Court and directed the petitioners to move bail petition first before the Sessions Judge, Gujrat, but granted them interim bail in the sum of Rs. 5,000/- with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of the High Court till the 5th June, 1975."

9. The petitioners have now come up to this Court against the above--mentioned order and it is contended on their behalf that the High Court has refused to exercise the jurisdiction vested in it under section 498, Cr. P. C. Without proper application of its mind and in disregard of innumerable precedents of its own Court of the exercise of such a jurisdiction without insisting on the applicant first moving the Sessions Court. Indeed, in the case of the petitioner No. 1 himself, the same High Court had on a previous occasion, granted him bail before arrest even in a case in which a charge under section 302, P. P. C. Was made without insisting that he should first go and move the Sessions Court concerned.

10. There is, of course, no statutory bar to an applicant moving the High Court direct for the grant of pre-arrest bail, there is also no Rule in that but even if there is such a practice it does not appear to be a practice which is uniformly followed by the Lahore High Court. In the circumstances, there must be some rational basis of which the High Court can pick and choose the, cases in which it should insist upon the applicant first moving the Sessions Court and the cases in which it will not do so. It cannot do so arbitrarily upon its whims and fancies. In the facts and circumstances of this case, this was an eminently fit case in which the High Court should have exercised this concurrent jurisdiction without insisting on this practice. If the allegations in the petition before the High Court are true that the newspapers' reports of the incident have already linked up the name of the complainant with various high personalities, some even holding high judicial offices, it cannot be said that it was unreasonable on the part of the petitioners to be genuinely under the apprehension that they would not get justice in the Sessions Court.

11. We are of the opinion that the arguments advanced on behalf of the petitioners are of considerable weight. We are not in a position to say that the practice, upon which t he learned single Judge of the Lahore High Court has insisted, is either an invariable practice or one that is uniformly followed by the High Court itself. If it had been a universal rule or practice which had been uniformly followed then an applicant for a pre-arrest bail would have had in the first instance to exhaust his remedy in the Sessions Court and we would have had nothing to say but in the absence of any such consistent s or uniform practice, we think that in the facts and circumstances of this case, it could not be said that the apprehension expressed by the petitioners was wholly unreasonable or unfounded.

12. This was, therefore, an eminently fit case in which the High Court should have exercised its concurrent power of granting pre-arrest bail on consideration of the merits of the case.

13. We are, therefore, of the opinion that this matter should go back to the High Court for disposal on merits. In the circumstances, we will extend the operation of the order of ad Interim bail granted by the High Court for another period of two weeks or till the disposal of the bail matter hereby remanded back to the High Court. It is hoped that .The matter will be taken up and disposed of before the expiry of the said period.

14. We have deliberately refrained from expressing any view on the merits of the case, as we do not wish to prejudice any party by any observation as to the merits.

15. This petition is, accordingly, converted into an appeal, the appeal is allowed and disposed of in the terms above stated and the matter is remanded back to the High Court for disposal on merits.