1. ' GHULAM RABBANI, J.---Applicants were granted interim bailvide order, dated 22-7-2005 in crime No,72 of 2005 registered with police station Artillery Maidan, Karachi under sections 339, 341 and 506-506 part H.
2. ' Today, this application has come up for hearing when, at the outset, Mr. Khawaja Naveed Ahmed learned counsel for complainant, has challenged the maintainability of this application. He has raised a preliminary objection that basically the instant application was filed for grant of protective bail, therefore, applicants ought to appear before Sessions Judge of jurisdiction protection being expended to them vide order, dated 22-7-2005, as according to him, an accused seeking pre- arrest bail, such as in this application. Normally ought to approach the Sessions Court in the first instance, Mr. Khawaja has stated further that such objection has already been raised by the office which, too, along with reply of learned counsel for applicants need to be considered, side by side by his contentions.
3. ' On the other hand Mr. Ilyas Khan, learned counsel for applicants has argued that the prayer in the instant application is sufficiently reflective of the fact that pre arrest bail has been sought which is nothing short of protection form arrest. Further, Mr. Khan speaking on the point of maintainability, has stressed that in case an application for grant of pre-arrest bail, such as the present one, has been filed and it has been entertained by granting ad interim bail then instead of dismissing such bail application on any technical ground it need to be decided on merits, in support of his contention he has referred to the case of Raees Wazeer Ahmed v. The State reported in 2004 SCM R 1167.
4. ' Mr. Arshad H. Lodhi, Assistant Advocate General, Sindh has refrained from expressing on above point. He seems to have satisfied himself by saying that the matter be decided in accordance with law. He has, however, stated his no objection to the confirmation of interim bail granted to applicant.
5. ' I have given due consideration to the oral submissions of learned counsel for parties. Also, I have seen the memo. Of bail with objection thereon raised by the office with reply thereto.
6. ' The instant application has been moved with the caption "For Pre-arrest Protective Bail under sections 498 and 498-A, Cr.P.C." The prayer made therein is reproduced as follows:-- "It is most respectfully prayed on behalf of the applicants above named that this Hon'ble Court may be pleased to enlarge them on per-arrest bail in the F.I.R. No,72/2005 under sections 339/506 (Part II) and section 341, P.P.C. Of P.S. Atillery Maidan,Karachi, pending trial if any, inter alia on the following facts and .Ground."
7. ' On the above application office has raised objection that Trial Court should be approached first in the light of the judgment of Hon'ble Supreme Court of Pakistan in two bail applications bearing Nos.192-K/1996 and 223-K/1996.
8. ' The question of maintainability of this application has surfaced in the matter in a situation where applicants herein, without first availing the remedy before Sessions Judge have preferred to this Court directly; for relief. Be that as it may, before this question is answered, in my estimation, it needs to be decided on the first place whether this application is for pre-arrest bail or simply for providing protection as a temporary measure enabling the applicants to appear before the Court of jurisdiction for grant of bail before arrest.
9. ' Reading of the prayer, reproduced above, clearly reflects that basically this application is for grant of pre-arrest bail and not for providing protection as a temporary measure to enable the applicants to appear before the Sessions Judge or Trial Court in the first instance and in this I am strengthened by the language used in prayers. I am also supported by the order, dated 22-7-2005 passed by my respectable brother Amir Hani Muslim, J. Which is reproduced as follows:-- "Notice to the respondents. In the meantime the applicants are granted interim bail in the sum of Rs,100,000 each with PR bond in the like amount to the satisfaction of the Nazir of this Court.
10. Adjourned to 28-7-2005 on which date the applicant to be in attendance."
11. ' Another order, dated 28-7-2005 passed by Hon'ble Chief Justice on this bail application when it was placed before him, too, supports me in my opinion. The same is reproduced as follows:-- "Interim bail was granted by my learned brother Amir Hani Muslim J, on 22-7-2005; let the matter be placed before his Lordship on 9-8-2005; interim order to continue till the next date."
12. ' From above narration it becomes evident further that this application was not disposed of finally to enable applicants to seek relief, such as bail before arrest by surrendering themselves before the Sessions Judge of the jurisdiction; but, this application was to be decided finally on having been entertained for grant of interim order which continues till this day under orders passed on 9- 8-2005 and 23-1-2006.
13. ' Thus, in view of whatever is stated above, the objection raised by Mr. Khawaja loses its force.
14. ' Coming to his another objection, it may be stated that I have gone through the case of Raees Wazeer Ahmed (supra) a judgment of three judges of Hon'ble Supreme Court authored by Hon'ble Chief Justice of Pakistan in which it has been observed that "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 absolute rule as depending upon the compelling circumstances of each case a person can approach directly the High Court by invoking its concurrent jurisdiction," further it has been observed that "besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to applicant then instead of dismissing it on technical grounds it should have disposed of on merits."
15. Now reverting to the merits of the case. It is seen that section 339 applied in F.I.R. Is not a punitive section while section 341 is bailable and section 506-part II is not punishable for more than seven years hence it does not fall under prohibitory clause of section 497, Cr.P.C. Arshad H. Lodhi, A.A.G.
16. Has stated his no objection to the grant of bail. His contention is that it is matter of civil nature between parties and criminal liability of applicants is not involved. As is obvious, the applicants have also not misused the concession of bail.
17. ' At this stage Mr. Khawaja has again challenged this bail application; yet, on another ground that the word mala fide has not been used in this application against the complainant or police, therefore, this bail application is not maintainable.
18. ' Replying to the above objection Mr. Khan learned counsel for applicants has stated that although the word mala fide has not been used, but, the other expressions used in the application sufficiently reflect mala fide on the part of the complainant as well as police; moreso, the mala fide can be gathered in the light of contentions of learned A.A.-G. Who expressed that it is matter of civil nature, involving no criminals liability on the part of applicants. Mr. Khan has orally stated in clear terms that there is mala fide on the part of complainant as well as police and in support of his contention, he referred to various grounds taken in this application. In particular, he referred to ground (A) taken in the application which reflects that the applicants have alleged against the complainant that he being an influential and wealthy person possessing a violent temperament is bent upon getting the applicants arrested, insulted,humiliated with ulterior motives to satisfy his ego. In ground (B) & (G) it is stated that the applicants are respectable citizens of Pakistan and a false case has been filed with sole motive of criminal intimidation and to cause to them humiliation. It is stated that they are not in a position to enter the premises, of Sessions Court of jurisdiction.
19. ' Mr. Khan has, during the course of his oral submissions, alleged mala fide on the part of complainant as well as the police and the ground taken in the application referred to by him as discussed above, in my view, supports his oral submissions. This objection of Mr. Khawaja, therefore, loses its force ;as well.
20. Having discussed the matter as above, I am of the view that a good case to confirm the interim order of pre-arrest bail granted to applicants on 22-7-2005 by my respectable brother Amir Hani Muslim, J. And then continued from time to time by my other respectable brothers, is made out.
21. Accordingly, relying on the dictum laid down in case of Raees Wazir Ahmed (supra) I confirm the interim bail granted to the applicants and thereby dispose of this application finally.
22. ' Complainant shall be, however, at liberty to seek cancellation of bail in case the circumstances at any stage of the trial enables him to do so.