2024 CCJ 3
Other citations: Original judgment = 2024 PCrLJ 30
[Islamabad High Court]
Before Aamer Farooq, CJ
Kamal Kumar—Petitioner
versus
The State and another—Respondents
Crl. Misc. No.1144-PB/2023, decided on 2nd August, 2023.
HEADNOTE
Criminal Procedure Code (V of 1898) —
— S. 498-A — Constitution of Pakistan, Art. 9 — Transit bail — Right to liberty — Scope — Concept of protective bail finds its roots from Section 498-A CrPC but has no definitive provision under which the remedy can be sought — It is a concept developed primarily by the Courts to protect the liberty of the person and to facilitate him to approach the competent Court or authority to surrender and seek remedy — It is akin to the right of any person to have access to justice; needless to observe that this remedy is purely based on the discretion of the Court and no crystalized principles or rules exist regarding its scope and application — Basically, the petitioner/accused has to satisfy the conscious of the Court that under the umbrella of access to justice he has to approach the competent Court or forum and be protected by way of an order preventing his arrest — Where the petitioner/accused does not follow the orders of the Court and flout the same without any plausible justification and repeatedly seek protection there is no compulsion on the Court to grant remedy or protection. [Para. No. 4]
Mir Badshah Qaisrani v. The State (2007 PCrLJ 604) relied.
Petitioner in person along with his counsel M/s. Abdul Latif Chaudhary and Saifullah, Advocates.
ORDER
Aamer Farooq, CJ:—In the instant petition the petitioner seeks protective bail in order to approach the Court of competent jurisdiction in Quetta, Baluchistan as a case bearing FIR No.28/2023 dated 28.02.2023 under Section 489-F PPC, Police Station City Quetta stands lodged against him.
2. At the very outset, learned counsel for the petitioner was confronted as to the maintainability of the petition on account of the fact that even earlier he filed a petition seeking protective bail in the same case (W.P. No.1425/2023) which was accordingly allowed on 20.04.2023 and the petitioner was granted protective bail till 02.05.2023, learned counsel for the petitioner had no plausible explanation for not complying with the order of the Court and the only justification he came up with was that due to Eid vacations he could not approach the Court of competent jurisdiction.
3. Submissions made by the learned counsel for the petitioner have been heard and the documents placed on record examined with his able assistance.
4. The concept of protective bail finds its roots from Section 498-A Cr.P.C. but has no definitive provision under which the remedy could be sought. It is a concept developed primarily by the Courts to protect the liberty of the person and to facilitate him to approach the competent Court or authority to surrender and seek remedy. It is akin to the right of any person to have access to justice; needless to observe that this remedy is purely based on the discretion of the Court and as noted above no crystalized principles or rules exist regarding its scope and application. Basically, the petitioner has to satisfy the conscious of the Court that under the umbrella of access to justice he has to approach the competent Court or forum and be protected by way of an order preventing his arrest. Where the petitioner does not follow the orders of the Court and flout the same without any plausible justification and seek repeatedly protection there is no compulsion on the Court to grant remedy or protection. This view finds support from Mir Badshah Qaisrani v. The State ( 2007 P. Cr. L. J. 604 ) where the Single Bench of the Lahore High Court, Lahore emphasized that concession of bail before arrest was a discretionary relief which could be granted in extraordinary circumstances. The observation that the accused in the said case had obtained protective pre-arrest bail from the High Court for approaching the Court of first instant and even obtained ad-interim bail from the competent Court but then absented himself indicated the conduct of the accused, therefore, he was denied the concession. In Mayoor Ahuja v. the State of U.P. the Allahabad High Court observed that where the protective bail is granted in the garb of such protection being given by the Court if the directions are not followed by the petitioner the consequences thereof would have to be faced by the applicant. On the touchstone of the case law and observations the conduct of the petitioner in the instant matter is not aboveboard inasmuch as he was granted protective bail for almost 12 days on 20.04.2023 and has approached only now in the second protective bail. The explanation for not approaching the Court of first instance in Quetta and filing this second protective bail after lapse of almost three months does not satisfy the conscious of the Court in exercise of discretion in favour of the petitioner.
5. In the referred facts and circumstances, this Court is not inclined to extend the discretionary relief to the petitioner, hence the instant petition is dismissed in limine.
Petition dismissed