' RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of Criminal Bail Applications Nos.1189 of 2005 and 1292 of 2005, as they arise out of a common F.I.R. Bearing No,185 of 2005 of Police Station New Fojdari, District Shikarpur.
2. Brief facts giving rise to the present applications are that on 7-11-2005 the complainant, Inspector Nisar Ahmed Noon, S.H.O. Police Station Fojdari, Shikarpur along with his subordinate staff was on patrol duty. At about 9-15 p.m. He received information through wireless that eight persons were abducted, therefore, the complainant along with his subordinate staff reached at Sahra Bano Farm, where the complainant on the head light of vehicle, saw some persons dragging a person.
On seeing the police party the said persons started firing from their klashnikovs, guns and rifles. The complainant informed the incident to higher officials. The police also fired towards the culprits to create hindrance. At about 8-15 p.m. S.H.O. Police Station Nisar Ahmed Noon along with his subordinate staff reached there. There was encounter between the police and the culprits.
However, the police party identified twenty persons, out of them three persons namely Irfan, Shahzado and Mir Hassan, are the present applicants. There were about 25/26 other unknown persons. They were armed with hatchets and Lathis. After the encounter the said persons went away leaving eight persons who were abducted. The complainant took the foot-prints and then they went to police station and lodged the report.
3. The applicants moved bail before arrest applications before this Court directly without surrendering themselves before the trial Court on the ground that the case was registered due to enmity between Imtiaz Ahmed Shaikh, the then Minister and the present Chief Minister of Sindh as the applicants are supporters of Imtiaz Ahmed Shaikh. In these circumstances the bail applications on the special grounds were entertained by this Court and interim bail was granted to the applicants.
4. We have heard the Advocate for the applicants. A.A.-G. For the State and perused the record of this case very carefully.
5. The learned A.A.-G. Raised a preliminary legal objection that the bail applications are not maintainable because in the first instance bail application should have been moved before the Sessions Court. Conversely, learned Advocate for. The applicant has stated that concurrent jurisdiction is with the Court and this is a special case showing special grounds of enmity between the then Minister and the present Chief Minister, therefore, this Court can entertain the bail applications. He has further stated that interim bail was granted to the applicants in view of the above special circumstances. Now the police have submitted challan before the trial Court, therefore, it will be an exercise in futility if the applicants are directed to approach the trial Court at this stage. In support of his contentions, he has relied upon the case of. Rais Wazir Ahmad v. State 2004 SCMR 1169.
6. We have given due consideration to the arguments and the case-law cited at the bar. It is well- settled principle of law that when a concurrent jurisdiction is available to two forums then in the first instance lower forum is required to be moved but this is not an inflexible rule because in an exceptional case the jurisdiction of superior Court can be invoked. This is one of such case as there is dispute between Inniaz Ahmed Shaikh, the then Minister and the present Chief Minister. The applicants, have alleged that they are supporters of. Imtiaz Ahmed Shaikh and in order to pressurize Imtiaz Ahmed Shaikh they have been involved in this case. Furthermore, in these circumstances bail before arrest applications were entertained and interim bail was granted. Now the police have submitted challan in the Court. In the case of Rais Wazir Ahmad (supra) similar circumstances appeared and in that case Ater grant of interim bail High Court extended the period of interim bail to a certain period with direction to the accused to approach the Sessions Court. The said order was challenged before the Honourable Supreme Court. The learned A.A.-G. Has also suggested that the protective bail may be granted to the applicants and they may be directed to approach the Sessions Judge. The Honourable Supreme Court of Pakistan considered all the aspects of the case and observed at page 1169 as under:- "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 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 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 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."
7. The above rule is fully applicable to the facts and circumstances of the present case, therefore, the arguments of the learned A.A.-G. Has no force.
8. As regards the merits of the case learned Advocate for the applicants has stated that there is delay of 21 hours in lodging the F.I.R.; that in a police encounter, in which klashnikovs, rocket launchers, rifles and guns were used, nobody has received injury; that the applicants Nos.1 to 3 were already in custody as per raid report of Judicial Magistrate, Shikarpur, copy of which has been filed; that the names of the applicants are not shown in the F.I.R. Except the applicants Nos.4, 5 and 6; that in the F.I.R. The applicants Nos.4, 5 and 6 have not been shown armed with any weapon; that the identification of the applicants on headlight of vehicle in the circumstances of the case is highly doubtful, therefore, the applicants are entitled to the concession of bail. He has also relied upon the case of Muhammad Firdaus v. State 2005 SCMR 784.
9. Conversely learned A.A.-G. For the State has stated that the names of applicants Nos.4, 5 and 6 are mentioned in the F.I.R.; that the names of other applicants are not taken by the complainant but the eight prosecution witnesses have taken the names of applicants in their 161, Cr.P.C.
Statements, therefore, their involvement has been established from the said statements. He has opposed the grant of bail to the applicants.
10. We have given due consideration to the arguments, gone through the material available on the record and found that the incident took place on 7-11-2005 at 7-30 p.m. The report was lodged on 8-11-2005 at 4-30 p.m. As such there is inordinate delay in lodging the F.I.R. Which the prosecution is required to explain. However, the learned A.A.-G. Has stated that the prosecution witnesses had tracked in foot-prints, therefore, a reasonable explanation has been furnished. The said explanation can be considered at the time of trial after leading evidence on the said point but the fact remains-that there is delay-in lodging the F.I.R. It has been further found that the names of only three persons viz. Applicants Nos.4, 5 and 6 are mentioned in the F.I.R. But they were not armed with any weapon as such the allegation of firing by these applicants appears to be doubtful at this stage. The names of remaining applicants have not been mentioned in the F.I.R.
11. As regards taking the names of applicants by eight prosecution witnesses in their 161, Cr.P.C.
Statements, suffice it to say that they were the members of raiding party. The F.I.R. Was lodged after 21 hours of the incident. The complainant must have been in contact with these. P.Ws. But the P.Ws.
Did not take the names of remaining applicants at that stage so as to facilitate the complainant to name those applicants in the F.I.R. However, this point also requires deeper appreciation of evidence, which can be undertaken at the time of trial. It is further pointed out that as per raid report of Judicial Magistrate, Shikarpur, conducted on 8-11-2005 he found applicants Nos.1 to 3 confined at police station. This also affects the veracity of the prosecution story with regard to presence of these applicants at the time of incident. The encounter continued for sufficient period of time, but it is surprising to note that nobody from either side received any injury though it is alleged that rocket launchers were also fired.
12. After considering the material available on the record, we are of the considered view that the applicants are entitled to the concession of bail, therefore, interim bail already granted to the applicants is confirmed on the same terms and conditions.
' Criminal Bail Applications Nos.1189 and 1292 of 2005 are allowed.
Pre-arrest .