2026 P Cr. L J 282

 2026 P Cr. L J 282

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

ABDUL GHAFFAR---Applicant

Versus

STATE through Advocate General Azad Jammu and Kashmir,

Muzaffarabad and another---Respondents

Criminal Misc. Petitions Nos. 294 and 295 of 2025, decided on 24th July,

2025.

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Azad Jammu and Kashmir Offence of Zina (Enforcement

of Hudood) Act (X of 1985), Ss. 10 & 18---Offence of zina, attempt to

commit unnatural offence---Pre-arrest bail, refusal of---Accused-

petitioner was alleged to be using a rented premises for purposes of

committing zina---Pre-arrest bail was an extra-ordinary relief which

was to be extended in rare and exceptional circumstances to the

accused---Undeniably, the right to liberty was a fundamental

constitutional guarantee, nevertheless when an individual was

accused of heinous offences i.e. permitting an unlawful use of

property in particular for others, the Courts must exercise their

extraordinary discretionary powers with heightened vigilance and

circumspection---This is imperative because pre-arrest bail is not an

absolute right but an exceptional remedy, and its grant in such

sensitive matters requires a meticulous balancing of the accused's

fundamental right to liberty against the paramount public interest

in preventing heinous crimes, ensuring the integrity of the

investigative process and safeguarding the victims well-being and

dignity---It is trite law that pre-arrest bail is not a routine

entitlement---Given the heinous nature of the alleged acts and their

far-reaching detrimental impact on society at large, the accused in

the matter at hand did not merit the concession of this exceptional

relief, particularly where reasonable grounds for belief in the

commission of such grave, non-bailable offences were discernable

formed the initial record, negating claims of ulterior motive, mala

fide or further inquiry into innocence---Pre-arrest bail application

was dismissed, in circumstances.

2009 PCr.LJ 1334; 2008 SCMR 980; 1999 PCr.LJ 86 and 2008 MLD 364

ref.

Usama Bin Tahir Anwar v. State 2023 PCr.LJ 517 and Javed Iqbal v.

The State 2022 SCMR 1424 rel. (b) Criminal Procedure Code (V of 1898)---

----S. 498---Bail order---Observations of the Court---Scope---

Observations made in bail order are solely tentative, intended

merely for the purpose of the bail applications, and shall in no way

prejudice the accused's fundamental rights, including the right to a

fair trial.

Waqar Farooq Abbasi and Syed Kashan Ali Bukhari for

Applicant/Petitioner.

Syed Faisal Gillani, Asst. A.G for the State.

ORDER

SYED SHAHID BAHAR, J.---Through 02 separate applications in

hand, the applicant, a civil servant, prayed for anticipatory bail in 2

different FIRs chalked out in Police Station Saddar and Police Station

Civil Secretariat i.e. FIR No.111/2025 and 178/2025 in offences under

Sections 10/18 and 10(3) of the Offence of Zina (Enforcement of

Hudood) Act, 1985 (ZHA).

2. The Court granted the applicant 'ad-interim bail', directing notice

to the State for a hearing to determine 'confirmation' or 'rejection' of

the instant bail applications.

3. This Court, besides a criminal Court in view of Section 6, Cr.P.C. is

also a Constitutional Court, thus is equipped with powers unlike

subordinate/inferior Criminal Courts. High Court can pass appropriate

order to protect the fundamental rights of a person with respect to life

or liberty, which does include to grant or decline pre-arrest bail. I am

inclined to dispose of the matter of anticipatory bail myself instead of

letting the matter to be decided by the District Court of Criminal

Jurisdiction.

4. Messrs Waqar Farooq Abbasi and Syed Kashan Ali Bukhari,

learned counsel for the petitioner vehemently contended that their

client is being dragged into the matter due to mala fide intentions, he

is neither nominated in the FIR nor has any remote nexus with the

allegations levelled in the FIR. Counsel for the petitioner further

contended that their client is a respected officer and PSC topper and in

case of arrest, he will suffer irreparable loss and arrest will damage

his name and fame. He placed reliance on the following case laws.

i. 2009 PCr.LJ 1334

ii. 2008 SCMR 980

iii. 1999 PCr.LJ Lah. 86

iv. 2008 MLD 364 

5. While on the other hand, by controverting the arguments

advanced by the petitioner, the learned Assistant Advocate General,

Faisal Gillani, opposed the bail application and prayed for rejection

of the applications. He submitted that the principal accused during

investigation disclosed the name of the petitioner and place of

occurrence, shelter home was in joint possession and rent of the

same was also being paid by the applicant as well. He further

contended that corpus of the applicant is required for prompt and

thorough Investigation, name of the applicant is appearing in column

No.2 of Challan No.75/25, as per record, the alleged premises of the

house were utilized as a brothel by Arif Butt accused, as well as by

the applicant.

6. Arguments heard, record perused.

7. Applicant calls the accusation downright false and mala fide. As

per the record, it is a delicate matter, so how could it be assumed that

he is out of the loop? At the threshold of inquiry, keeping in view the

rampant crime of sexual harassment while deciding the matter qua

pre-arrest bail, the Court dealing with the matter is required to take

into consideration the infra factors: i.e.,

(i) The nature of offence, and its overall impact upon society;

(ii) Tentative assessment of allegation of mala fide; and

(iii) Degree of imminent danger/threat and conduct of the applicant

and his involvement.

What is Bail? A. Bail: An Incisive Glimpse

i. Literal Meaning:

8. The word "bail" comes from the old French word "bailier", which

means "to hand over" or "to deliver". In its original sense, it referred to

the act of delivering a prisoner into the custody of sureties who would

be responsible for his/her appearance in Court. It evolved to include

the security given for such appearance.1

9. Bail is a mechanism that allows a person accused of a crime to be

released from police or judicial custody before trial, upon providing a

guarantee (known as bail bond) that he/she will appear in Court

whenever required

2. The primary purpose of bail is to secure the

attendance of the accused in Court to stand trial and prevent his/her

flight from justice.

3 If the accused fails to appear, the bail amount can

be forfeited.4

B. Types of Bail 

10. In AJ&K, as in numerous commonwealth jurisdiction, bail is

broadly categorized based on the stage of the legal process: i.e.

i. Post-Arrest Bail (Regular Bail):

11. This is the most common type, sought after an individual has

been arrested and is in custody. The Court, while granting or refusing

bail, considers factors such as the nature and gravity of the offence,

the strength of evidence, likelihood of abscondence, tampering with

evidence/witnesses and previous criminal record.

5 In AJ&K, this is

primarily dealt with under Sections 496 and 497 of the Code of

Criminal Procedure, 1898 (Cr.P.C).6

ii. Pre-Arrest Bail (Anticipatory Bail):

12. This is a unique provision allowing a person to seek bail in

anticipation of an arrest for a non-bailable offence. Both High Court

and Sessions Court have concurrent jurisdiction to grant pre-arrest

bail under Section 498, Cr.P.C. Pre-arrest bail is an exceptional relief

which is to be granted only where there is a clear demonstration of

mala fide

7 so as to protect innocent person against victimization

through abuse of law for ulterior motives

8.

C. History of Pre-arrest Bail

13. The concept of anticipatory bail is a relatively modern

development in common law criminal procedure, primarily

originating and evolving in the sub-continent.

a. Origin in Pakistan:

14. Unlike many other bail provisions, anticipatory bail was not

initially an explicit part of the Code of Criminal Procedure, 1898

(Cr.P.C) as enacted by the British. The power to grant pre-arrest bail was

largely developed through judicial interpretation particularly by the

Lahore High Court in the case of Hidayat Ullah Khan v. The Crown

9

which is considered as a foundational judgment in recognizing the

inherent power of the High Court to grant pre-arrest bail. The reasoning

was that if the High Court had the power to grant bail after arrest, it

implicitly had the power to grant it before arrest to prevent an unjust

detention.

b. Evolution in India:

15. While initially based on judicial interpretation of Section 498,

Cr.P.C India later formally codified anticipatory bail. The Law

Commission of India, in its 41st report (1969), recognized the need for

such a provision to protect innocent persons from false accusations

and harassment. It recommended its inclusion. Consequently, Section 438 was specifically inserted into the Indian Cr.P.C, expressly

providing for anticipatory bail. This made it a statutory right/remedy

rather than solely a product of judicial interpretation

10.

c. Evolution in Pakistan:

16. Unlike India, Pakistan did not introduce a separate statutory

section for anticipatory bail

11. Instead, the practice of pre-arrest bail

continues to operate under the general powers of the High Court and

the Court of Sessions under Section 498 of the Cr.P.C, 1898.

d. Purpose

17. The core purpose of pre-arrest bail is to prevent the misuse of

the power of arrest and to protect individuals from undue harassment

and humiliation before a proper investigation or trial can establish

accused's guilt. Key purposes include:

i. Protection against false implication and harassment:

18. The primary objective is to safeguard the liberty and dignity of

individuals who have reasons to believe they might be arrested on

false, frivolous or politically motivated charges or due to mala fide

intentions of the complainant or police.

12

ii. Prevention of Dignity and Reputation:

19. An arrest, even if later found to be unwarranted, carries a

significant social stigma and can cause immense humiliation and

damage to a person's reputation. Pre-arrest bail acts as a shield against

such irreparable harm. In Gurbaksh Sing Sibbia v. State of Punjab,

13 it

was observed:

"The fear of arrest by an unscrupulous prosecutor or a false accuser

may be the motivation for the application for anticipatory bail."

iii. Prevention of Pre-trial punishment:

20. Detention, even for a short period, can be a form of punishment.

Pre-arrest bail ensures that an individual's liberty is not curtailed

unnecessarily before there is sufficient evidence to justify accused's

detention for investigation or trial

14.

iv. Facilitating Cooperation with Investigation:

21. Often, courts grant anticipatory bail with conditions that require

the applicant to cooperate with the investigation, appear before the

police when required, and not tamper with evidence or witnesses. This

allows the investigation to proceed while preserving the individual's

freedom. 15 v. Check on Police:

22. It acts as a judicial check on the arbitrary exercise of the power

of arrest by Law Enforcement Agencies (LEAS) compelling them to

have "reasonable grounds" before depriving a person of their liberty

because liberty is not the gift of the State, it is a fundamental right of

an individual

16.

23. Anticipatory bail is indeed a 'safety valve' for personal liberty

but having said that, it must not be granted in cases involving heinous

crimes unless there is a substantial evidence of false implication

17.

24. The power of the High Court and Court of Session to grant pre-

arrest bail, first and foremost, must be examined in constitutional

context of liberty, dignity, due process and fair trial. Pre-arrest bail is

in the nature of a check on the police power to arrest a person. The

non-availability of incriminating material against the accused or non-

existence of a sufficient ground including a valid purpose

18 for

making arrest of the accused in a case by the investigating officer

would, as a corollary be a ground for admitting the accused to pre-

arrest bail and vice versa.

19

25. Be that as it may, the general principle is bail, not jail

20,

however, this principle is not absolute. This is because pre-arrest bail

is an extra-ordinary relief which is to be extended in rare and

exceptional circumstances to the accused.

21 Undeniably, the right to

liberty is a fundamental constitutional guarantee, nevertheless when

an individual is accused of heinous offences i.e. permitting an

unlawful use of property in particular et al, the Courts must exercise

their extraordinary discretionary powers with heightened vigilance

and circumspection. This is imperative because pre-arrest bail is not

an absolute right but an exceptional remedy, and its grant in such

sensitive matters requires a meticulous balancing of the accused's

fundamental right to liberty against the paramount public interest in

preventing heinous crimes, ensuring the integrity of the investigative

process and safeguarding the victims well-being and dignity.

26. In Javed Iqbal v. The State

22, Supreme Court of Pakistan laid

down a ratio decidendi that in pre-arrest bail matters, merits of the

case can be touched upon, hence after taking stock of the contents of

the record permitting an unlawful use of property that too, against

women etc. who, unfortunately are already vulnerable in patriarchal

society, the exercise of discretion for granting pre-arrest bail to the

accused becomes exceptionally restricted. This heightened judicial

scrutiny is necessitated by the profound severity of such offences, which inflict not only deep and indelible psychological harm upon the

victim but also pose a significant threat to societal morality and order.

27. Trite that pre-arrest bail is not a routine entitlement. Given the

heinous nature of the alleged acts and their far-reaching detrimental

impact on society at large, the accused in the matter at hand does not

merit the concession of this exceptional relief, particularly where

reasonable grounds for belief in the commission of such grave, non-

bailable offences are discernable form the initial record, negating

claims of arriere-pensee

23, mala fide or further inquiry into

innocence.

28. Case laws referred by the learned counsel for the applicant are

distinguishable to the facts of instant case.

29. The epitome of the above discussion is that the instant

applications seeking pre-arrest bail are hereby rejected.

30. It is imperative to note that the observations herein are solely

tentative, intended merely for the purpose of the instant bail

applications, and shall in no way prejudice the accused's fundamental

rights, including the right to a fair trial.

JK/44/AJK.H.C Applications rejected.