1997 P Cr (PLP)

"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 PLD 1959 Dacca 192 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 applicants was that three F.I.Rs. of the incident had been registered at the Clifton Police Station; the first (No.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 10-00 p. m: in the night of 20-9-1996, the second (No. 399 of 1996) registered on 24-9 1996 after midnight at the instance of Asghar Ali, a personal servant of Mir Murtaza Bhutto and the last registered on 9-11-1996 at 12-45 p.m. on the direction of this Court and at the instance of one Noor Muhammad, as such, there were three versions of the incident and as bail has already been granted to all the accused named in the first F.I.R. the applicants too are entitled to the concession of bail. It was contended that according to the first F.I.R. the police resorted to firing in self-defence after Mir Murtaza Bhutto's party had started firing on the police whereby applicant No.1 and S.H.O. Haq Nawaz Sial sustained injuries. It was argued that Wajid Ali Durrani the then Senior Superintendent of Police, Karachi, South, as the highest ranking Police Officer at the place of incident was supervising the operation and even in the third F.I.R. no overt act is assigned to the applicants. It was stated that in the interim challan too submitted in the Sessions Court a few days back, applicants' named have not been mentioned, confirming that no evidence of their involvement in any crime was found and for this reason also they are entitled to bail. Mention of applicants' names in the third F.I.R. was claimed to be with ulterior motive so as to avenge the death of Mir Murtaza Bhutto and others. 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. 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 bail 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 approve. 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 Perwez v. Badi-uz-Zaman Khan and others 1985 PCr.LJ 3007:-- "

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 pre-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 full-filled, 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 case-law, I come to the merits of applicant's application for pre-arrest bail. There is no dispute that the incident occurred in which eight persons including Mir Murtaza Bhutto were killed and some others received injuries as a result of firing by the police. It is not denied that about 80 -100 police personnel armed with sophisticated weapons had beers deployed at the place. It is also admitted that the applicants were present at the place of occurrence. Their contention that they had no part to play in the operation as it was being supervised by the Senior Superintendent of Police, Karachi (South) does not find support from the first F.I.R. registered at the instance of the then S.H.O. Haq Nawaz Sial, according to which the applicants were supervising the operation. The controversy about Haq Nawaz Sial's injury being self-suffered and his subsequent death are matters which too cannot be overlooked. It may be mentioned that except for the words of the learned counsel for the applicants there is no reliable material available to suggest ulterior motive on the part of the police or the complainant. The fact that the applicants names have not been mentioned in the .interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission to name the applicants in the interim challan would perhaps suggest that there is also no genuine proved apprehension of imminent arrest" of the applicants. If allegation of ulterior motive and mala fides were to be accepted on bare words, the plea for pre-arrest ail would succeed in every case howsoever serious the offence. On the facts of this case, there appears no reasonable ground to suspect that the nomination of the applicants 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 two applicants, as such their application for pre-arrest bail is rejected. The earlier order granting interim pre-arrest bail to the applicants is recalled. N.H.Q./S-64/K Pre-arrest bail refused.