ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-250 of 2021

 

Date

               Order with signature of Judge

 

                                               

 

1.         For orders on office objections

2.        For hearing of bail application.

 

20.08.2021

 

Mr. Amanullah G. Malik, Advocate for the Applicant

Syed Sardar Ali Shah Riavi, DPG

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            At the very outset, learned Counsel representing the Applicant submits that earlier bail application of the applicants was declined, as the same was for pre-arrest bail, subsequentlyhe preferred pre-arrest bail application before this court which was declined and he was taken into custody. Thereafter he filed post-arrest bail before the trial court and while declining the post-arrest bail application vide order dated 12.04.2021, learned trial Court had observed that this is second bail application after his earlier bail application was declined upto High Court and further observed that contentions of learned Counsel are already been discussed and no fresh ground is evaluated for making the case of applicant for further inquiry and dismissed the bail application.

            Learned DPG also does not support the impugned order on the ground that findings for deciding pre-arrest bail and post-arrest bail are distinguishable to each other and the same are to be decided on its own merits.

The observation of the learned trial Court that after rejection of pre-arrest bail on merits there exist no fresh grounds for grant of post-arrest bail and dismissed it is not sustainable under the law. It is observed that this Court in C.P. No.D-8324/2019& C.P. No.D-5482/2019 after the dismissal of pre-arrest bail observed that “this is their second attempt for same relief, their earlier effort in this regard ended vide order dated 08.07.2019 when their petitions for pre-arrest bail were dismissed and they were taken into custody by NAB”. Such order was impugned before the Hon’ble Supreme Court of Pakistan in Civil Petitions No.995 of 2020 and 1013 of 2020 Amin Muhammad FAzwani v. The NAB through its Chairman and others;wherein the Hon’ble Supreme Court of Pakistan has held that the learned High Court mistakenly considered that the petitions for bail after arrest before it, were filed in the second round of such relief and directed to this Court to decide the bail petitions of the petitioners on its own merits.

In another unreported case of Syed Ali Raza& others v. Federation of Pakistan through Secretary M/O law, Islamabad & others(Civil Petition No. 194,298 &304 of 2018) the Hon’ble Supreme Court of Pakistan has held that;-

8.  ……….With respect to the learned Judges of the High Court, we may point out that the principles governing pre-arrest and post arrest bail are different and merely because the petitioners’ petitions for pre-arrest bail were dismissed was not a sufficient reason to also deprive them with the concession of post-arrest bail.

            In the case Lt. Gen. (Rtd.) Fazl-e-Haq v. The State (1989 SCMR 1724) the  Hon’ble Supreme Court of Pakistan has held that;-

6.            The learned counsel for the petitioner has requested us that on observation be made in this order that the test somewhat prematurely applied by the High Court in para.8 of the impugned judgment may not be taken by the High Court or Courts subordinate to it to prejudice the matter of pending application of the petitioner for bail after arrest. The other is that an observation be made that in view of the nature of the proceedings and the belated stage at which the petitioner has been implicated there will be expeditious disposal of the pending matters.

7.            Observation made in an order dealing with a matter of bail before arrest do not ordinarily and should not generally affect the exercise and undertaken or to be undertaken after arrest, for grant or refusal of bail. We are sure that the  Courts will follow that principle and be not prejudiced in any matter thereby. We are also confident that keeping in view the nature of the proceedings an early and expeditious disposal of the matter will be ensured at every level.

           

In the case of Muhammad Hussain v. The State (1982 SCMR 227)the  Hon’ble Supreme Court of Pakistan has held that;-

10.          …….. We can, however, not lose sight of the fact that pre-arrest bail and bail after arrest are based on entirely different principles and the rejection of an application for the former does not have any bearing on the latter.

 

                In sequel to above, impugned order dated 12.04.2021 is set-aside and the matter is remanded back to the trial Court with direction to learned trial Court to decide the bail application of the Applicant on its own merits preferably within a period of one month. 

            Copy of this order be communicated to Mr. Nadeem Ahmed Khan, Additional Sessions Judge, Moro, for compliance.

 

Faisal Mumtaz/ PS                                                                                                                                          JUDGE