1977 P Cr (PLP)

The facts giving rise to this application are that the applicant is the Chairman of Feteh Textile Mills Ltd., Hyderabad and also carried on business on various other styles. In the Fateh Textile Mills disputes have been going on for some time past between the two rival groups each one of whom consists of labourers, one of which is said to be pro‑management and the other pro‑labour. For the purpose of brevity I shall be referring to these groups as the Management Group and the Workers' Group. In each case the membership itself is that of labourers. On the 16th of May, 1972 it seems that there was a good deal of turmoil between the two groups in the course of which on each side slogans were raised and stones throwing indulged in. The police was already present in apprehension of such a situation and intervened as a result of which some persons were injured, but one only namely, Rasoolo seriously. Counsel now tells me on both sides that Rasoolo has since died. It is an admitted position that this Rasoolo belongs to the management group. The first Information Report of the occurrence was recorded which is F. I. R. No. 134/ 72 and this relates to offences under sections 120 (B), 307, 148/149 and 353/332, P. P. C. An hour later another F. I. R. was also recorded of a subsequent clash and the offences alleged there are those punishable under sections 120 (B), 114, 148/149, 353/332, P. P. C. It would be clear that the only offences of serious nature are those mentioned in the earlier F. I. R., namely 307, P. P. C. which now of course should be treated as section 302, P. P. C. A number of people have of course been arrested in this case but the present application relates only to the applicant who is the proprietor of the business. A learned Single Judge of this Court has already upon first hearing of this case, granted interim bail. 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 v. The State (P L D 1959 Dacca 192) where in a case of concurrent jurisdiction on the provisional 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 upon the sole ground that it should have been moved before a Court of inferior jurisdiction. I, have no doubt in my mind, and learned Counsel on both sides agree, that bail ought to be granted in cases where if the applicant had been in actual physical arrest the nature of the case or the evidence which is available, was such that the Court should be persuaded to grant bail. In these circumstances I have to examine the contention of the learned counsel that the name of the applicant appears in neither of the F.1. Rs. Though it does not appear in the second F. I. R. a mention is made in the first F. I. R.which is ambiguously worded. It could be the Seth, that is the applicant, himself, had been coming to the Mills, for the last two weeks, with his body guards, or that on the day in question he also came as usual accompanied by his personal body guards. However, since the first F. I. R. was recorded, the learned Advocate‑General tells me, that the statements of five witnesses at least, who are all police officers, was also recorded which shows that the Seth was then actually present in the premises, and besides this I am informed, the Deputy Commissioner and the Superintendent of Police will also be examined and will support the prosecution case on that point. That in a situation of this kind they have not been examined so far, I can understand though I am not expressing any opinion whether a trial Court should extremely believe this evidence. 'The important question, however, for me just now is whether I should rely upon the omission of the name in the F.1. Rs. and hold that these witnesses ought not, therefore, prima facie to be believed, at this stage, and secondly whether there is evidence of instigation. So far as the first question is concerned I have not been able to pursuade myself that I must, upon the perusal of the F. I. Rs. hold that such state?ments are necessarily false; I would be usurping I think the functions of a trial court if I do so. My present purpose could only be to see whether there is reliable evidence, which could be believed for that purpose and I think I am bound to hold that there is such evidence, The difficulty however does not end there. Admittedly all that those statements say is that the Seth was present in his room, none of them expressly says that he has instigated the party. The Mills are in any case a place where the applicant could well be in the ordinary course of business and I cannot from the fact of his presence, infer necessarily an intention to cone and instigate those who caused the trouble. On the evidence that has no so far been recorded, therefore, I am unable to say that there is any reliable evidence of instigation, and, therefore, confirm the bail granted on the terms fixed by Mr. Justice Abdul Kadir Shaikh. Of course if at any time during the course of investigation, any evidence is available which expressly establishes instigation on the part of the applicant or is of circumstances from which an inference can be drawn or there is other evidence of guilt, it would be open to the prosecution to apply for cancellation of bail. Petition allowed.