2012 P Cr (PLP)

MUHAMMAD TASNIM, J.

Applicants are booked in F.I.R No.188 of 2010, under sections 147, 148, 149, 302, P.P.C., 337-A(i), 324 Q&D, 452, 34, P.P.C., Police Station Gulshan-e-Maimar.

2. The applicants have directly approached this Court through the present bail application, same was taken up in Court on 12-11-2010. The applicants were admitted to interim pre-arrest bait subject to their furnishing surety in the sum of Rs. 50,000 (Rupees Fifty Thousand) and P. R. bond in the like amount to the satisfaction of the Nazir of this Court.

3. The facts, as set out in the F.I.R., are that cbmplainant Ghulam Nabi son of Faiz Muhammad lodged FIR., stating therein that he is residing at Katchi Abadi Hussain Goth, Gulshan-e-Maymar, and he is truck driver by profession. On 5-8-2010 complainant was at Hyderabad and at about 12.30 night time he received information that his son Farooque met with dispute. Again at 2-00 a.m. night, complainant was informed that his son Farooque is died. On this information complainant came from Hyderabad to his village, where his relative Nazir son of Hashim informed that on 4-8-2010 at about 7-30 p.m., complainant was present outside his home where Farooque son of Ghulam Nabi, 2. 'Imran son of Bashir Ahmed,

3. Fida Hussain son of Ghulam Hussain,

4. Shahnawaz son of Ghulam Hussain were also sitting therein, in the meantime suddenly two cars one was white bearing No.991 and another black car and on motorcycles some persons were noticed, who were identified as Jamil Baloch,

2. Jawed Baloch,

3. Shakeel Baloch,

4. Jilani Brohi,

5. Rabbani Brohi,

6. Waheed Brohi,

7. Jehan Shah Brohi,

8. Muhammad Usman Baloch,

9. Zakir Baloch,

10. Imran Baloch,

11. Mujahid Chana and 5/6 unknown persons armed with weapons dagger, lathies and clips attacked to whom one Jamil Baloch was having 'a dagger who caused the injury to deceased Farooque, which hit on his back and other caused the lathies, iron rods, dagger backside of arms to all of four of witnesses including deceased on which he raised cries where relatives 'came and took all the injured to Jinnah Hospital, where Farooque succumbed to injuries and died there, after inquiry F.I.R was registered.

4. Learned counsel for the applicants in support of the bail application has submitted that there was delay of 10 hours in lodging the FIR, which has not been explained by the prosecution. Learned counsel further submitted that allegations against the applicants are general in nature and no specific role has been assigned to any of the applicants in the F.I.R. he further submitted that P.W. Nazir had given false information to the complainant for implicating the present applicant with mala fide intention and just to ridicule and harass the applicants as they all are family members. He further argued ,that seven days after the submission of interim challan statement under section 164, Cr.P.C. of P.W. Nazir was recorded, wherein prosecution has improved its case. Learned counsel further submitted that case of the prosecution is doubtful and requires further enquiry. He further submitted that P.Ws. Shahnawaz, Imran, Fida Hussain have not stated in their statements that P.W. Nazir was present at the time of incident, but P.W Nazir in his statement under section 161, Cr.P.C. has stated that P.Ws. Imran, Fida Hussain and Shahnawaz were present along with him at the time of occurrence. All the P.Ws. have directly implicated Jamil Baloch, who was allegedly having dagger and have allegedly caused injury to Farooque, who subsequently. died. Learned counsel further submitted that complainant has not directly assigned any role to the applicants in the FIR., but allegations were made against all the applicants in general. Learned counsel further submitted that in their statement under section 161, Cr.P.C. P.Ws. have improved their case with mala fide intention just to implicate the entire family of the applicants. He further submitted that initially applicants were charged under section 337-A(i), P.P.C. and they were admitted to bail by the learned trial Court, however in subsequent investigation the applicants were charged with sections 324, 452, P.P.C. in the circumstances the applicants approached this Court directly for getting pre-arrest bail as addition of above two sections came to the notice of the applicants on submission of interim challan on 18-5-2010. In support of his contentions, learned counsel for applicants had relied upon the following case law:-- (1) RAIS WAZIR AHMAD v. THE STATE (2004 SCMR 1167), (2) SULTAN AHMED SIDDIQUI v. THE STATE (PLD 2010 KARACHI 110), (3) RIAZ AHMED GOHARSHAHI y. THE STATE (PLD 2002 Karachi 6), (4) FARZAND ALI v. TAJ AND OTHERS (2002 SCMR 1854), (5) BASHARAT HUSSAIN v. GHULAM HUSSAIN AND OTHERS (1978 SCMR 357), (6) KOURO AND ANOTHER v. THE STATE (2004 YLR 2434); and (7) JAFFAR AND OTHERS v. THE STATE (1980 SCMR 784).

5. Learned counsel for the complainant has not opposed the grant of bail and has submitted that at the wrong information of P.W. Nazir F.LR was lodged against the applicants, in the circumstances complainant has no objection if interim pre-arrest bail granted to the applicants is confirmed.

6. Learned A.P.-G. has formally opposed the conformation of the bail. However, he admitted that allegations against the applicants are general in nature and no specific role has been assigned to the applicants in the F.I.R.

7. Learned counsel appearing for injured persons has vehemently opposed the grant of bail. Learned counsel submitted that application for pre-arrest bail filed before this Court is not maintainable and prayed that interim pre-arrest bail earlier granted may not be confirmed. Learned counsel, explaining the delay in lodging the FIR., submitted that complainant at the relevant time was at Hyderabad and he travelled to Karachi, thereafter about 10 hours of the occurrence F.I.R. was lodged. He further submitted that since four persons were injured in the incident hence bail of the applicants may not be confirmed. He further submitted that applicants have attacked the complainant's house and have caused injury and one innocent person had died. In support of his contentions, learned counsel for applicants has relied upon the following case-law:-- (1) NAZIR AHMED AND OTHERS v. THE STATE AND OTHERS (PLD 2005 Karachi 18). (2) MUHAMMAD AJMAL KHAN v. THE STATE (1985 PCr.LJ' 21); and 1 (3) MUHAMMAD ISHAQ v. CHAN ZEB AND ANOTHER (1996 PCr.LJ 845)

8. I have heard the learned counsel for the parties and have perused the record so also case law cited at bar.

9. With regard to the point of maintainability of the present bail application before this Court, applicants have disclosed the reasons for approaching this Court directly that the bail before arrest application of the applicants had been submitted before the learned Sessions Judge West and the honourable Iilyd Additional Sessions Judge being Incharge Sessions Judge was pleased to grant the interim bail before arrest to the applicants who were on pre-arrest bail, and suddenly when the case was fixed on 8-11-2010 the applicants received a copy of application under section 497(5), Cr.P.C. against grant of bail in which it was mentioned that second investigation of the above case was carried out by another I.O. of P.S. Sohrab Goth and he has again recorded the statements of the witnesses and have submitted the challan in which sections 324/452 and 34, P.P.C. were inserted which were non-bailable and based on mala fide on the part of police. The accused/applicants were already. on pre-arrest bail granted by the IIIrd Additional Sessions Judge West but due to insertion of other sections under sections 324, 452 and 34, P.P.C., the police was raiding the houses of applicants/accused, as such they apprehend great apprehension that the police will arrest them in the above crime and subjected them to torture, humiliation and disgrace, as the applicants are members of respectable family and most of them are students, as such finding no other alternative the applicants approached to this Court for grant of bail before arrest. Even otherwise it is a consistent view of the superior Court that once interim pre-arrest bail has been granted by the Court the bail application be decided on merits instead of dismissing it on technical ground.

10. In the case of Rais Wazir Ahmad (supra), the honourable Supreme Court of Pakistan while dealing with the point of direct filing of bail application , before High Court has observed in the following words:-- It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e. Sessions Judge in the matter of 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 approach directly to the High Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmad v. The State PLD 1974 Lah. . 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ

74. Besides it 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 grounds it should have disposed it on merits. As in this case the charge against the petitioner is under section 506, P.P.C. and allegedly case has been registered against the petitioner at the instance of complainant due to his political influence. as has been narrated in application for grant of bail, then. the Court instead of rejecting plea of the petitioner for bail before arrest ought to have decided application on merits."

11. In the above quoted judgment the honourable apex Court has held that if there are compelling circumstances the person can approach the High Court without filing his bail application before the lower judicial forum. In the present case, as stated above, the applicants had submitted the bail before arrest application before the learned Sessions Judge West and the honourable IIIrd Additional Sessions Judge being Incharge Sessions Judge was pleased to grant the interim bail before arrest to the applicants who were on pre-arrest bail, and suddenly when the case. was fixed on 8-11-2010 the applicants received a copy of application under section 497(5), Cr.P.C. against grant of bail in which it was mentioned that second investigation of the above case was carried out by another I.O. of P.S Sohrab Goth and he has again recorded the statements of the witnesses and has submitted the challan in which sections 324/452 and 34, P.P.C. were inserted which were non-bailable and based on mala fide on the part of police. The accused/applicants were already on pre-arrest bail granted by the IIIrd Additional Sessions Judge West but due to insertion of other sections'under sections 324, 452 and 34, P.P.C., the police was raiding the houses of applicants/accused, as such they apprehend great apprehension that the police will arrest them in the above crime and subjected them to torture, humiliation and disgrace, as the applicants are members of respectable family and most of them are students, as such finding no other alternative the applicants approached to this Court for grant of bail before arrest. Even otherwise ' it is a consistent view of the superior Court that once interim pre-arrest bail has been granted by the Court the bail application be decided on merits instead of dismissing it on technical ground. In view of above quoted Supreme Court judgment the bail application filed by the present applicants is maintainable. Similar view has also been expressed in the cases of The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322), Nadeem Hamid v. The State (PLD 1997 Karachi 494), Shamrez Khan v. The State (1999 PCr.LJ 74) and Riaz Ahmed Goharshahi v. The State (PLD 2002 Karachi 6)

12. On merits, admittedly there is delay of-ten hours in lodging of F.I.R., which has not .been explained by the prosecution. Distance between Hyderabad and Karachi can be conveniently covered within two to three hours, but still delay of seven hours has not been explained. It is settled law that at the bail stage deeper appreciation of the record cannot be gone into, but only a tentative assessment is to be made just to find out as to whether applicants/accused are -connected with the commission of offence or not. Applying the above settled legal position to the case in hand, it will be noted that allegations against the applicants are general in nature and specific role has been assigned only to Jamil Baloch for killing one person with his dagger, but said Jamil Baloch is absconder. It is also apparent from the perusal of the record that three P.Ws. have not stated in their statement under section 161, Cr.P.C. that P.W. Nazir was present with them at the time of incident, but only P.W. Nazir has stated that all other three P.Ws. were present along with him. It is also apparent from the perusal of under section 161, Cr.P.C. and delayed statement under section 164, Cr.P.C.

13. From the perusal of record, it further shows that originally applicants were charged under section 337-A(i), P.P.C., but based on subsequent investigation, provisions of sections 324 and 452, P.P.C. were also added. In the circumstances, present bail application was filed. There is inordinate delay in recording of statement under section 164, Cr.P.C. All the above factors make the case of the prosecution doubtful and the present applicants have successfully made out a case of further enquiry.

14. The honourable Supreme Court of Pakistan in the case of Jaffar and others (supra), in the circumstances when there was no material available on record to conclude as to who caused the fatal injury, the honourable Supreme Court of Pakistan observed that in such circumstances case becomes a case of further enquiry in terms of section 497(2), Cr.P.C. The honourable Supreme Court of Pakistan while dealing with above issue has observed as under:-- "In seeking leave to appeal the learned counsel for the petitioners contended that the first petitioner had also received injuries in the fight and while refusing bail to the petitioners, the High Court did not give due consideration to the counter version. It was net contended that from the available material it could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr. P. C. The learned Additional Advocate-General appeared to oppose the bail but after examining the material we were of the view that it was case of further inquiry. Accordingly we converted the petition into an appeal and allowed bail to the petitioners."

15. The judgments cited by leaned counsel for the injured persons are distinguishable on facts and will be applicable to case once evidence of the parties is recorded. In the circumstances, judgments cited by learned counsel are not attracted to the case in hand.

16. Since the bail application of the applicants was considered by this Court and they were admitted to interim pre-arrest bail per order dated 12-11-2010. It is consistent view of the Superior Court that once pre-arrest bail application has been entertained by the High Court same is to be decided on merits and should not be dismissed on technical grounds.

17. Keeping in view the above settled legal position in mind, since applicants have successfully made out a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C: the interim pre-arrest bail granted to the applicants per order dated 12-11-2010 is hereby confirmed on the same terms and conditions.

18. Bail application is disposed of in the above terms. H.B.T./M-159/K Pre-arrest bail confirmed.