P L D 2012 Sindh 212 (PLP)

MUHAMMAD ALI MAZHAR, J.

The applicants have applied pre-arrest bail in Crime No.90 of 2010, Police Station Adilpur, lodged under sections 302, 399, 402, 324,353, 440, P.P.C. and section 7 A.T.A.

2. On 22-2-2011, the applicants were granted interim pre-arrest bail by this Court.

3. The brief facts of the case are that on 31-8-2010, complainant SIP/S.H.O. Syed Iltaf Hussain of Police Station Adilpur lodged F.I.R. alleging therein that on 30-8-2008 at 1745 hours, he along with his subordinate staff left police station for patrolling. When they reached at bridge of Bandh Minor, they received spy information that near village Noor Muhammad Mahar, six persons armed with weapons are standing in order to commit some offence. On receipt of such information, complainant party proceeded towards pointed 'place and on the headlights of vehicle saw and identified accused Abdul Karim Shaikh and five unidentified persons armed with Kalashnikovs standing on the road. Accused persons signalled the complainant party to stop. The complainant party got down and disclosed their identity and directed the accused to throw their weapons and surrender before them. The accused persons immediately took position and started direct firing upon the police with the intention to kill them. They fired upon H.C. Habibullah Jhatial who raised cry and fell down. The police in retaliation also fired. The culprites taking the advantage of darkness and crops ran away. The firing continued for 20 minutes. Complainant appointed A.S.I. Ranjho Khan Bozdar and P.C. Mir Hassan Mahar as Mashirs and inspected body of H.C. Habibullah and found one fire above on his right eye and its exit on back of right side of head through, one fire on right cheek and its exit, one fire on right side of chest and its exit and one fire on middle finger of right hand and he was found dead. The complainant along .with his staff tracked the footprints of culprits which disappeared near new Chak.

4. The learned counsel for the applicants argued that names of both the applicants are not mentioned in the F.I.R., but they have been implicated on the basis of statements of P.Ws. recorded under section 161, Cr.P.C. after the delay of two days of the F.I.R. while the complainant only stated in the F.I.R. that he and his witnesses have seen the unknown accused on the light of vehicle, but at the time of lodging F.I.R., complainant and witnesses failed to disclose the names of present applicants. Not a single private person has been cited as witness of the incident. It is also astonishing to note that the complainant party armed with sophisticated weapons fired about 140 rounds but no injury was caused to the accused. He further argued that according to F.I.R., prosecution witnesses were accompanied with the complainant for the whole day but no name of applicants was mentioned in the F.I.R. and they have been falsely implicated in the statements which were recorded after two days. He further argued that there is at least 17 hours delay in lodging the F.I.R. It was further averred that identification in the light of vehicle is a weak type of evidence and even no features and descriptions of the present applicants have been mentioned in the F.I.R. According to prosecution, five unknown persons armed with KKs were standing on the road while memo of Wardhat shows the footprints of three persons only. The learned counsel concluded that keeping in view the entire circumstances of the case and involvement of the applicants through statements recorded under section 161, Cr.P.C., the case of the present applicants requires further inquiry and since the applicants apprehended their arrest, undue harassment and humiliation at the hands of police, therefore, bail application was moved in this court directly as the trial court had already issued NBWs against the applicants.

5. The learned DPG for the State argued that the applicants have failed to prove any previou's enmity with the police party and he argued that on the basis of statements of P.Ws. recorded under Section 161 Cr.P.C., both the applicants were rightly implicated as they were fully identified in the headlights of Govt. vehicle. He further argued that during encounter, H.C. Habibullah lost his life; therefore, he opposed the bail application and concluded that interim pre-arrest bail granted to the applicants is liable to be recalled. He further agued that before invoking the jurisdiction of this court, the applicants failed to apply bail in the trial court.

6. Heard arguments of the, learned counsel for the applicants and learned DPG for the' State. There is no doubt that the names of the present applicants are not mentioned in the F.I.R. and the complainant himself mentioned in the F.I.R. that he and his staff have seen the unknown accused on the light of Government vehicle and would recognize them on seeing again, but names of the applicants have been implicated in the crime on the basis of statements of P.Ws. recorded under section 161, Cr.P.0 and not in the F.I.R. On the one hand, complainant stated that he along with other police officials can recognize the unknown accused persons on seeing them again but after two days of lodging the F.I.R., present applicants have been implicated by name without any identification parade. It is also a fact that in the F.I.R. no features or descriptions of the applicants are mentioned. It is also fact that in the memo of Wardhat, footprints of three persons are shown, while according to F.I.R. six persons were standing on the road. During this encounter, police fired 140 rounds and, no accused person was injured. There is also 17 hours gap between the incident and the F.I.R. but even then names of the applicants were not mentioned but they were implicated in the statements recorded under section 161, Cr.P.0 which creates doubts to the prosecution case to the extent of present applicants and further inquiry is required to prove their guilt. Essential pre-requisites for grant of bail by virtue of subsection (2) of section 497, Cr.P.C. are that court must be satisfied on the basis of opinion expressed by police or the material placed before it that there are reasonable grounds to believe that the accused is not guilty of offence punishable with death, or imprisonment for life or imprisonment for ten years. Even the honourable Supreme Court in case of Rana Muhammad Arshad (supra) held that bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497, Cr.P.C. i.e. unless he establishes existence of reasonable 'ground leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt.

7. So far as the objection raised by learned DPG that the applicants should have approached first to the trial court and he referred to the judgment reported in PLD 2009 SC 427 (Rana Muhammad Arshad v. Muhammad Rafique and others), in which honourable Supreme Court held that in absence of reasonable and justifiable cause a person desiring his admission to bail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose. It is clear from the aforesaid dictum that the condition to apply first to the court of first instance is only applicable in absence of reasonable and justifiable cause. The applicants have clearly mentioned in their bail application that their names are not mentioned in the F.I.R. and they have been implicated subsequently and since they apprehended their arrest and in order to avoid undue harassment and humiliation at the hands of police, they approached directly to this court with further ground that their NBWs had been issued by the trial court so in the peculiar circumstances, we are of the view that the applicants have directly approached to this court with reasonable and justifiable cause and rightly invoked concurrent jurisdiction of this court in the matter of bail before arrest. At this juncture we are also fortified by the judgment reported in 2004 SCMR 1167 (Rain Wazir Ahmad v. The State), in which, the full bench of honourable Supreme Court held that it is true that normally a person against whom a case has been registered, may approach in the first instance to the original Court i.e. the Sessions Judge for bail before arrest because propriety so demands, but it is not an absolute rule, as depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction and if such an application has been moved before the High Court and it has entertained and granted ad-interim bail to the applicant then instead of dismissing it on technical ground it should have disposed it of on merits. Since, in this case also, the learned Divisional Bench of this court entertained the bail application and also granted ad interim bail to the applicants on 22-2-2011, therefore, keeping in view all attending circumstances and the dictum laid down by the honourable Supreme Court supra, we have decided this bail application on merits instead of its technical knockout.

8. After considering the pros and cons, we have reached to an irresistible conclusion that the case of the present applicants falls within the phrase of further inquiry, as there are sufficient grounds warranting further inquiry into their guilt. Therefore, interim bail granted to the applicants is hereby confirmed on same terms and conditions and this bail application is disposed of accordingly. The above findings are tentative in nature and shall not prejudice the case of prosecution. Since the challan has been submitted, therefore, the learned trial court is directed to conclude the trial preferably within a period of four months as already observed in the connected Bail Application No.950 of 2011. M.W.A.11-5/K??????????? ?????????????????????????????????????????????????????????????????? Pre-arrest bail confirmed.