P L D 2010 Karachi 110 (PLP)

SHAHID ANWAR BAJWA, J.

F.I.R. No.111 of 2009 was lodged at Police Station Malir Cantt., on 1-10-2009 on complaint of Sqd., Ldr., Muhammad Asif. F.I.R. was registered for an alleged offence under sections 427, 447, 511 and 34, P.P.C. It was stated by the complainant in the complaint that land measuring 125 acres is situated in China Base, Deh Dozan. The dispute relating to that land, it was stated in the complaint, was pending in the Courts between PAF and Sindh Government Employees Co-operative Housing Society. It was further stated in the complaint that the status quo order was operating. On 1-11-2009, the complainant stated, it came to knowledge of PAF, Base Malir, that office of the Society and other persons were trying to occupy the land of PAF and were demolishing walls of China Air Base, Malir Cantt. Four applicants were stated to be trying to occupy the land and had demolished walls and caused loss. It was further stated in the complaint that on seeing staff of PAF Base, accused persons ran away and it was found that wall of PAF Base was demolished. Background of the case is that a civil suit was filed by Sindh Government Employees Co-operative Housing Society before the Civil Court, stating therein that they had got a land allotted to them in Scheme No.33 from private owners and got the same mutated in the record of rights and after completion of all legal formalities, they started development work as per the approved plan. The plots were consequently allotted to the members of the Society. However, in respect of some of the plots, Base Commander, PAF Base Malir Cant., made attempt to prevent development work. Civil suit was filed for restraining the defendant No.4, Base Commander, PAF, Base Malir, from creating any hindrance in the development work of the Society. After framing issues and recording evidence, the suit was decreed vide judgment dated 17-9-2004 and decree was issued on 27-9-2004. The defendant preferred an appeal against that judgment and the appellate Court vide order dated 22-12-2005, dismissed the appeal. Against order of the appellate Court, Revision Application No.29 of 2006 was filed and vide order dated 30-9-2008, this Court dismissed the revision application. Execution application was filed and executing Court on 19-8-2009 ordered execution of the decree as prayed. In the execution application, it was prayed that possession of land from Judgment-debtor No.4, who had taken possession during pendency of suit, be recovered and handed over to the decree-holder. As a consequence of that, Nazir of District and Sessions Court, Malir, got the order executed. Relevant Para of compliance report submitted by the Nazir, reads as under:-- "In compliance of order of Honourable Court, undersigned issued the letters to the Station House Officer, concerned Police Station for proving the Police Aid dated 16-9-2009, 26-9-2009 and 1-10-2009 but Station House Officer again stated that I have no spare police force, for compliance of Court order dated 16-9-2009 I wrote the letter to my Senior Officers to provide the Police Force for compliance of the Court order dated 16-9-2009. (Copy of letter with endorsement of concerned S.H.O. is enclosed). After that I reached at suit site along with Mr. Muhammad Shahid, Bailiff of the Court and enquired the suit-land of suit property from Mr. Ajmal Khan son of Niazullah Khan, CNIC No.42201-2316298-1, resident of H.No.116, Moeenabad Extension, Model Colony, Karachi, who is working as a surveyor in the afore-said Society. He shows me the suit property with help of site plan of the Society. I directed to Mr. Muhammad Shahid, Bailiff of the Court to execute the Honourable Court orders dated 16-9-2009, Mr. Muhammad Shahid, Bailiff of the Court removed the sign-board and demolished the wall with the help of labours of D.H. from the suit site (the sign-board is lying in safe custody in property room of District Court Malir). I have handed over the possession of suit property to the Management of Messrs Sindh Government Employees Co-operative Housing Society Ltd., in presence of Members of same Society. (List enclosed). Report is submitted". This execution was effected on 1-10-2009. The learned counsel for the applicants submits that the applicants who are members of the Society as well as office bearers, have been handed over possession under an order of executing Court and demolition of wall and removal of sign-board was affected under Orders of the Court by the Nazir of the Court below. He further submits that all the offences are bailable offences, involving maximum punishment of 2 years or fine or both. He further submits that the applicants are respectable citizens and all of them are retired governments servants including a retired District and Sessions Judge. Since objection was raised as noted in the order of this Court on 2-11-2009 by the learned counsel for Base Commander, PAF Malir, that a direct pre-arrest bail application has been filed in this Court without going to the District Court at Malir. The learned counsel for the applicants relies upon case of Rais Wazir Ahmad v. The State 2004 SCMR 1167, to contend that the jurisdiction to grant pre-arrest bail is a concurrent jurisdiction and in compelling circumstances, a person can directly approach the High Court. Learned counsel submits that on one hand are retired government servants having meagre means and on the other hand force of PAF. He further relied upon Riaz Ahmed Goharshahi, v. The State PLD 2000 Karachi 6, in which case Mr. Justice Sarmad Jalal Osmany, the Honourable Chief Justice, had held that the superior Courts can entertain an application for pre-arrest bail and grant the relief to the accused in appropriate cases where accused could, inter alia, establish that he was prevented from approaching the lower Court concerned. It was further held by the Honourable Judge in that case that accused would suffer irreparable loss to his honour, dignity and self-esteem if bail before arrest is not granted. Learned counsel further relied upon Tariq Bashir and 5 others v. The State PLD 1995 SC 34, wherein parameter for grant of bail before arrest have been laid down. Learned counsel, therefore, submits that the applicants are innocent, possession had been handed over to them by an order of the Court and by Nazir of District Court. Learned counsel for the Base Commander PAF, Malir Cantt., on the ground of maintainability of bail, relied upon Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427, to contend that pre-arrest bail cannot be granted unless the person seeking it satisfies the conditions specified in subsection (2) of section 497 of Cr.P.C., and in the absence of a 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. He also relied upon Imtiaz Ahmed and another v. The State PLD 1997 SC 545, where it was held that even in respect of offence, not falling under the prohibitory clause of section 497, Cr.P.C., the Court may decline to admit an accused to bail if there exist a recognized exceptional circumstances. He also relied upon Dr. Abdul Rauf v. the State 2007 YLR 1483, where it was held that bail application filed while bypassing the trial Court which has power to entertain a bail application would not be maintainable. Learned counsel further submitted that against the order passed by this Court in Rev. Application No.29 of 2006, C.P.L.A. No.1561 of 2008, was filed in Honourable Supreme Court and on this C.P.L.A. on 16-10-2009, leave to appeal was granted. He further submitted that the Honourable Supreme Court was pleased to suspend the operation of impugned judgment and stayed execution proceedings. Learned counsel further submitted that application under Order XLI, rule 5, C.P.C. was filed and on 19-9-2009, learned III-Additional District Judge Malir was pleased to order maintenance of status quo till next date of hearing. He further submitted that on next date i.e., 25-9-2009, status quo was extended. He referred to diaries of Court in this regard. He further stated that Vakalatnama was executed by the present applicants in the execution application on 30-9-2009. He also submitted that execution order did not speak about possession. I have heard the learned counsel. I have also gone through the documents on record as well as documents placed by the learned counsel along with statement (these documents are taken on record). In Muhammad Arshad's case, Honourable Supreme Court laid down the framework and guidelines according to which, jurisdiction vested in the High Court and Courts of Session is to be exercised and relevant paras reads as under:- "

8. It was perhaps for the first time in December, 1948 that by interpreting the latter part of section 498 of the Code of Criminal Procedure in Hidayat Ullah Khan's case PLD 1949 Lah.21=AIR 1949 Lah.77, the power vesting in the High Courts and the Courts of Session to admit persons to bail before they could be arrested, was authoritatively discovered by a Full Bench of the Lahore High Court. Cornelius J. (As he then was) epitomized the said power and it bounds in the following words:-- "For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a Court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which, not only is good prima facie, ground made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm."

9. Even since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re-examined, the same was only reaffirmed. The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all as under:-- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e., unless he establishes the existence of reasonable grounds 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; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that; (f) in the absence of a reasonable and justifiable cause, a person desiring his admission to bail before arrest, must, in the first approach the Court of first instance i.e., the Court of Session, before petitioning the High Court for the purpose." In Rais Ahmad Wazir's case a three Members Bench of the Honourable Supreme Court (it may be pointed out that in Muhammad Arshad's case, it was a two Members Bench), made the following very material observations:-- "

8. We have heard learned counsel for the parties and gone through the record, so made available, carefully. 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 a 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 Ahmed 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 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 grounds it should have disposed it of 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 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." In Dr. Abdul Rauf's case though the case is by a Single Bench of this Court, it was observed that a bail application under section 498, Cr.P.C., improperly presented before the High Court, bypassing forum of the trial Court, would not be maintainable. With respects in Rais Ahmed Wazir's case, Honourable Supreme Court has clearly held that if there are compelling circumstances a person can approach the High Court while bypassing the lower judicial forum. Therefore, matter turn on the facts of each case. A universal, iron clad, water tight rule cannot be framed. If there are reasonable compelling circumstances, the High Court can directly entertain bail application. In the present case, it is stated by the learned counsel for the applicants that since the opponent is .PAF therefore, there are apprehensions of highhandedness at the hands of the police and they may not be able to even reach the Courts below much less get a proper hearing. Their apprehension may be misplaced but, at least for the purpose of grant of bail, I think it is a reasonable ground. Therefore, objection of learned counsel for PAF is overruled. Second objection of the learned counsel was that bail cannot be claimed as a matter of right even in cases involving bailable cases. He relied upon Imtaiz Ahmed's case. This case was a case under Prevention of Corruption Act and it was a case relating to Sukkur Jail break and accused were refused bail. Therefore, this case has to be seen in the context of its own really very peculiar facts. On the other hand in Tariq Bashir's case, following law was laid down by Honourable Supreme Court: "(a) Criminal Procedure Code (V of 1898)

In bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace, section 497, Cr.P.C., divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. In non-bailable offence falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example

(a) where there is likelihood of abscondance of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is a danger of the offences being repeated if the accused is released on bail; and (d) where the accused is a previous convict. A bare reading of above observations made by the Honourable Supreme Court clearly reveals that in bailable offences grant of bail is a right and not a favour. ;, the present case all three sections under which the applicants are charged, do not fall under the prohibitory clause of section 497, Cr.P.C. Even otherwise, maximum punishment is two years. Therefore, this objection is also overruled. At the bail stage, the Court has to make only tentative assessments and not to go deeper into appreciation of the fact. Tentatively, as I have quoted above, it appears from the compliance report submitted by the Nazir that on 1-10-2009 that it was Nazir who directed the Bailiff of the Court to execute the Court order and in presence of the Nazir, the Bailiff removed the sign-board and demolished the wall. As far as the order granted by the Supreme Court is concerned, it was granted on 16-10-2009 and a reading of that order indicates that it was not pointed out to the Honourable Supreme Court that decree of Court below had already been executed on 1-10-2009. Had this fact pointed out to Honourable Supreme Court then what would have been order of Supreme Court, is a question which can only be answered by the Supreme Court. Learned counsel for the Base Commander emphasized that order of the executing Court had been challenged and on application under Order XLI, rule 5, C.P.C., learned III-Additional District Judge had on 19-9-2009 ordered maintenance of status quo which was continued on 25-9-2009 and therefore, learned counsel submitted that on the day, the Nazir affected demolition of the wall and removal of the sign-board, there was a stay order and act of Nazir and applicants was in violation of status quo order granted by the III-Additional District Judge. That may be so. The learned counsel is at liberty to approach the Court of III-Additional District Judge by moving appropriate application. While hearing the bail application, I am only to see whether on the basis of material before me without going into deeper appreciation of the facts, the applicants are entitled to bail or not. In my opinion, the offences are bailable and as a matter of right, the applicants are entitled to bail. No extraordinary and compelling circumstances have been pleaded or pointed out for denying such right to the applicant. Therefore, the bail already granted to them, is hereby confirmed on the same terms. Needless to say, any observations made in this order will not prejudice the trial Court in any way whatsoever while deciding guilt or innocence of the accused persons. N.H.Q./S-132/K Pre-arrest bail allowed.