1997 P Cr (PLP)

This application for pre-arrest bail has been filed by the applicant named in F.I.R. No.443 of 1996 registered at Clifton Police Station, Karachi, on 9-11-1996, as a result of the direction of this Court in C.P. No.D-1720 of 1996. The applicant was earlier granted interim pre-arrest bail by me in this case. The F.I.R. alleges that on 20-9-1996 at about 8-35 p.m. while Mir Murtaza Bhutto, Chairman, Pakistan People's Party (S.B.) was returning to his residence at 70-Clifton, Karachi, along with other office-bearers and workers of his party in four vehicles, the applicant who at that time held the post of S.H.O., Khokharapar Police Station and other Police Officers, namely, Wajid Durrani, S.S.P. (South), Haq Nawaz Sial, S.H.O., Clifton Police Station, Shahid Hayat Khan, A.S.P. Saddar, Karachi, Rai Muhammad Tahir, A.S.P., Darkhshan, Karachi, Agha Muhammad Jamil, S.H.O. Napier and S.H.O., Garden Police Station stopped the said vehicles at a distance of about 100 meters from his residence. About 80-100 police personnel armed with automatic weapons were in position at the place. As soon as Mir Murtaza Bhutto lowered the window glass of his vehicle, the police personnel, on the orders of the above Police Officers started firing at Mir Murtaza Bhutto party as a result of which eight persons were killed including Mir Murtaza Bhutto and several others injured. The incident is alleged to be the outcome of conspiracy involving political opponents of Mir Murtaza Bhutto in the Federal Government and the Provincial Government of Sindh as well as the officers. The first point that needs consideration in the matter is as to whether in this case of concurrent jurisdiction it was not necessary for the applicant to have moved the Sessions Court first before approaching this Court for pre-arrest bail. It is well-settled by string of decisions of superior Courts on the point that in matters of pre-arrest bail where the lower Court has concurrent jurisdiction with the High Court, ordinarily the accused should not be allowed to bypass the Sessions Court and approach the High Court directly. The general rule is that where two Courts enjoyed concurrent jurisdiction, the Court comparatively lower in the hierarchy should be moved first and only under compelling anti exceptional circumstances an accused may be allowed to move the High Court without first approaching the Sessions Court. Reference may be made to the cases of Zulfiqar and others v. The State and 10 others 1991 SCMR 322 and Sh. Zahoor Ahmad v. The State PLD 1974 Lah.

256. Mr. Suleman Habibullah, the learned counsel for the applicant submitted that as the complainant had connections with persons holding high offices and the incident had been widely reported and commented upon in the newspapers, the applicant genuinely apprehends that in the charged political atmosphere presently prevailing in the city the Sessions Court may be embarrassed and unable to give relief to the applicant. It was further submitted that third F.I.R. having been registered on the direction of this Court, the lower Court may also feel restrained to take independent view of the matter. In these circumstances, it was argued, that this case was a fit case where this Court should exercise its concurrent jurisdiction without insisting on the applicant first moving the Sessions Court. The argument is not without force. There is little doubt that the complainant, if not directly at least indirectly, has connection with important personalities of the country. It cannot also be denied that the incident received wide publicity in the media and there would hardly be a political leader, worth the name, who has not commented upon the incident giving it a political tinge. In these circumstances, it would not be unreasonable to treat this as an exceptional case for the exercise of the concurrent jurisdiction of this Court. Reference in this regard may also be made to the case of Wali Muhammad v. The State 1973 PCr.LJ 873 where it has been held that:-- "The first question that agitated my mind was, whether in a case of a concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo, however, relied upon a Full Bench case reported in Shah Zillur Rehman Mutawali v. The State wherein a case of concurrent jurisdiction on the revisional side. It was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of on its own merits. There are many other cases to the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction." This would be another reason for not insisting on first moving the Sessions Court in the present case which has been heard by me on merits too. On merits, the contention of the learned counsel for the applicant was that three F.I.Rs. of the incident had been registered at the Clifton Police Station; the first (386 of 1996) at the instance of Haq Nawaz Sial, the then S.H.O., Clifton Police Station was registered shortly after the incident at about 10-00 p.m. in the night of 20-9-.1996, the second (399 of 1996) registered on 24-9-1996 after midnight at the instance of one Asghar Ali, a personal servant of late Mir Murtaza Bhutto and the third registered on 9-11-1996 at 12-45 p.m. on the direction of a Division Bench of this Court and at the instance of one Noor Muhammad. It was submitted that as there were more than one versions of the incident and according to first F.I.R. the gunmen accompanying Mir Murtaza Bhutto fired on the police first which was then returned by the police and since bail has been granted to all the accused named in the first F.I.R., the applicant too is entitled to the concession of bail. The counsel contended that the applicant was not present at the place of occurrence when the incident occurred and that at that time he was busy in the investigation of a case at the New Karachi Police Station. In support of the plea he referred to the photo copy-of two entries in the Roznamcha of the New Karachi Police Station, one purported to have been made on 20-9-1996 at 12-15 p.m. showing the applicant's arrival at that police station and the other purported to have been made on 21-9-1996 at 7-30 a.m. showing his departure from that police station. As such it was submitted that the applicant was entitled to bail on the ground of alibi. Reliance was placed on\the case of Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1995 SCMR 219 wherein it has been observed that there is no absolute bar in the High Court considering the effect of a plea of alibi for the purposes of bail. It was pointed out that applicant's name does not find mention in the first F.I.R. also for the reason that he was not present at the place of incident and it was for the same reason that his name does not transpire in the interim challan of the case submitted in the Sessions Court, which further confirms that no evidence of his involvement in the crime was found and as such he was entitled to bail. It was alleged that the applicant was nominated in third F.I.R. with ulterior motive as the complainant and other office-bearers of Mir Murtaza Bhutto's party were annoyed with the applicant as he had arrested one Ali Sonara, an activist of the party and had also submitted a report about the illegal activities of several party workers including the complainant. Reference was made to a photo copy of the alleged report. Mr. M.L. Shahani, the learned Advocate-General Sindh, and Mr. I.A. Hashmi, the learned counsel appearing for the complainant, Noor Muhammad, vehemently opposed the application. On the factual plane, they contended that it was a case of pre-planned murder of Mir Murtaza Bhutto in consequence of a conspiracy hatched by some important personalities in collusion with the Police Officers named in the F.I.R. and this was apparent from the facts, that while 8 persons were killed and several injured on the side of Mir Murtaza Bhutto, only two Police Officers received minor injuries which could not have been the case in real encounter, that the injury sustained by S.H.O. Haq Nawaz Sial was considered to be self-suffered by one of the medical boards constituted by the Provincial Government to examine him and that Haq Nawaz Sial was murdered in mysterious circumstances just a few days after medical board's findings about his injury. F.I.R. No.278 of 1996 is said to have been registered in the Garden Police Station about the murder of Sial. In the above circumstances, it was submitted that the applicants had no case for grant of bail muchless pre-arrest bail. On the question of alibi they contended that it was not at all difficult to manoeuvred entries in Roznamcha. Main thrust of their arguments, however, was that the rule for the grant of bail before arrest was quite different from that governing grant of bail after arrest. Presence of ulterior motive, particularly on the part of the police, to harass and humiliate by means of unjustified arrest, is one of the conditions for the grant of pre-arrest bail. In the instant case it was submitted that none of the conditions required for the grant of pre-arrest bail existed. There is no doubt that the conditions required for the grant of pre-arrest bail are materially different from those for bail after arrest. It has been observed in the case of Sarwar Sultan v. The State and another PLD 1994 SC 133 that:-- "From legal angle, it can be said that there is material difference between after arrest as contemplated under section 497, Cr.P.C. and bail before arrest under section 498, Cr.P.C." and that: "Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime." The question of grant of anticipatory bail was examined in the case of Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256 and after reviewing the precedent law on the point the learned Judge laid down the conditions considered necessary for the grant of pre-arrest bail. The relevant portion of the judgment is as follows:-- "

10. The main conditions to be satisfied before exercise of jurisdiction. to allow pre-arrest bail under section 498, Cr.P.C. are-- (a) that there should be a genuine-proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner; (b) that the petitioner should physically surrender to the Court; (c) that on account of ulterior motive, particularly on the part of the police, there should be apprehension of harassment and undue irreparable, humiliation by means of unjustified arrest; (d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C. would have to be kept in mind; (e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C." In the case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 the aforesaid five conditions for the grant of pre-arrest bail noted in Sh. Zahoor's case were approved. It has been observed that:-- " In para. 10 of the judgment in the case of Sh. Zahoor Ahmad, five conditions were noted as deducible from the precedent law. One of the conditions was that ' on account of ulterior motives particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest. " Reference may also be made to following observations in the case of Muhammad Pervez v. Badi-uz-Zaman Khan and others:-- "7 Without dilating upon the merits of the case, lest the prosecution or accused may be prejudiced, this Court will deem it proper to point out to the learned Sessions Judge that there is to be drawn a line of distinction between a re-arrest bail and after arrest bail. In case of a pre-arrest bail it is the duty of the Court to examine the question whether such an action would not frustrate the investigation. The Court is to be conscious of the fact that grant of pre-arrest bail is not a rule but an exception, rarely to be used and only in case of mala fides. In fact this Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts are fulfilled, the most essential being that the intended arrest is motivated with mala fides which have to be specifically stated. Further the accused has also to show that irreparable loss is likely to be caused to him by the intending arrest. The accused have to make believe the Court that he is in no way involved in the commission of the offence charged with." Having thus examined the precedent law on the point, I come to the merits of applicant's application for pre-arrest bail. In so far as the plea of alibi is concerned, it may be mentioned that mere two alleged entries from the Roznamcha cannot alone be sufficient to establish alibi. These entries do not necessarily prove that the applicant did not at all move out from the police station in the period between these entries. Even otherwise such entries in Roznamcha cannot be given much credence at the stage of pre-arrest bail. In the present case, in my view, the plea of alibi will have to be examined on proper evidence which is not available at present. It is also not possible to accept that applicant's name was not mentioned in the first F.I.R. as he was not present at the place of incident. S.S.P. Wajid Durrani's name too does not find mention in the first F.I.R. though admittedly he was present at the place. The contention that the applicant was involved in the case as he had arrested Ali Sonara or that he had submitted some report about the activities of Mir Murtaza Bhutto's party workers is difficult to believe. If such had been the intention a number of other police personnel responsible for the arrest of party activities would too have been named in the F. I. R. There seems no dispute that as a result of police firing 8 persons including Mir Murtaza Bhutto and Ashique Jatoi were killed and several others injured. The controversy about Haq Nawaz Sial's injury being self-suffered and his subsequent death are matters which too cannot be overlooked. There is no reliable material available to suggest ulterior motive on the part of the police or the complainant. The fact that the applicant's name has not been mentioned in the interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission of applicant's name in the interim challan would perhaps suggest that there is also no genuine proved apprehension of imminent arrest of the applicant. On the facts of this case, there appears no reasonable ground to suspect that the naming of the applicant in the F.I.R. was mala fide or with ulterior motive. For the foregoing reasons, I am of the view that this is not a fit case for the grant of pre-arrest bail to the applicant, as such his application for pre-arrest bail is rejected. The earlier order granting interim pre-arrest bail to the applicant is recalled. N.H.Q./Z-13/K Pre-arrest bail refused.