' SHAHID ANWAR BAJWA, J.--- An F.I.R. No,47 of 2009 was registered at Police Station Old Mirpur District Mirpurkhas on 13-9-2009 at 2030 hours for an offence alleged to have occurred on the same day at 1830 hours. The offence was under sections 302, 147, 148, 149 and 427, P.P.C. The complainant stated that he and his brothers were doing contract work and his brother Abdul Kaleem, the victim, used to ply/load a van at stop/Adda at Nau Kote, Mirpurkhas Terminal and at that Adda the present applicants also have a Coaster stop. The complainant stated that while he and his brother were standing at a shop a black colour car stopped near his car from which six persons alighted including the four applicants, other two being unknown persons. All of them were stated to be armed with T.T. Pistols. Applicant No,2 was alleged to have told brother of the complainant that they had restrained him from stopping at the Adda. While this was happening another brother of the complainant Saleem and one Rizwan Qaimkhani also came on motorcycle.
The present applicants are alleged to have fired on Abdul Kaleem and then fled away. Said Abdul Kaleem was taken to Civil Hospital Mirpurkhas where due to fire he succumbed to his injuries. F.I.R.
Was registered. Four accused approached this Court with pre-arrest Bail Application No,107 of 2009 and protective bail was granted by this Court on 29-9-2009 for seven days. Thereafter this bail application was filed. It is submitted in the bail application that when the present applicants approached the trial Court premises the accused party armed with fire-arms had surrounded the Court premises and therefore, they could not reach the trial Court for filing pre-arrest bail application. Consequently, this bail application was filed and on 19-10-2009 the Honourable Acting Chief Justice granted interim bail to the applicants.
2. Learned counsel for the applicants referred to a station diary entry at the same police station. In the entry it was recorded at 1842 hours that one Naveed came to the police station and informed that two unknown persons on a motorcycle had injured a person by firing upon him at the place which is subject-matter of this bail application.
' Thereafter it is recorded that at 1922 hours Civil Surgeon informed the police station that some persons had brought a person in injured condition who thereafter had died and relatives were taking the doctors as hostage. Thereafter it is recorded in the station diary that on the same day that some persons had resorted to arson and were forcing shop keepers to close the shops. The learned counsel also referred to newspaper reports in daily Jang of September 14th, 2009, Daily Ummat, Daily Juraat, Daily Ibrat, Daily Tameer-e-Sindh and Daily Khabroon, where news items appeared that two unknown persons on motorcycle had killed Abdul Kaleem and thereafter there were reports- in the newspapers of closing down of shops etc. Learned counsel submitted that the applicants have been implicated because of political enmity. He referred to para.1 of the bail application where it is pleaded that there had been business rivalry between the applicants' party and the complainant party because both are transporters. Learned counsel referred to an application submitted by him to D. P.O. On 9-3-2009 wherein it had been alleged that some unauthorized persons are operating a van without route permit. Similar application was also made to D.O.P. On 11-3-2009 as well as to D.C.O. Learned counsel submitted that applicant No,1 on the date of incident was present at Karachi and received dead body of one Muhammad Sarwar son of Muhammad Ali from P.N.S. Shifa at 1735 hours. He further submitted that applicant No,3 (Rana Saleem) was on the date of incident at Faisalabad. He was involved in a traffic incident on 12-9- 2009 at 6-30 p.m. And he was challaned by police and thereafter fine of Rs,200 was imposed on him. Applicant No,4 on the date of incident was at a place 75 Km. From the place of incident. He was called at police station by D.S.P. Jsuddu. He further stated that was Ramzan and it was time of breaking the fast and he had been invited as a guest and he informed the said D.S.P. That he would come after opening the fast and he would meet him thereafter.
3. Learned counsel submitted that although pre-arrest bail 'application was filed before the Court below but that application was dismissed on 5-10-2009 because the applicants could not appear before that Court because according to the applicants the Court premises had been surrounded by persons of complainant party who were duly armed. He however, submitted that after obtaining pre-arrest bail from this Court he duly attended the trial Court on 12-11-2009 when the matter was adjourned to 17-12-2009. He pointed out from diary of the Court below that it was adjourned to 17- 12-2009 for supply of copies and letter to Investigating Officer for submitting final challan. Learned counsel referred to statement under section 161, Cr.P.C. By one Ibrar Ahmed son of Mathar Ahmed, Malik Muhammad son of Malik Riaz and Muhammad Saleem son of Muhammad Siddiq, in which statements the witnesses have stated to police that it were two persons on motorcycle who came and fired as a consequence of which the said Abdul Kaleem died. The third witness i.e. Muhammad Saleem also stated that at the time of murder the four applicants were not present at the scene of incident. Learned counsel submitted that there are a number of F.I.Rs, lodged against the applicants at the instance of complainant party which party according to him has business rivalry with it and had affiliation with a political party. Learned counsel submitted that it is a case of two versions and therefore, the case is still under investigation. He referred to an order issued by Provincial Police Officer, Sindh, Karachi on 2-11-2009 by which order a special team of police under supervision of D.I.-G.P. Mirpurkhas was constituted for investigation of the case. Learned counsel submitted that there are differences between ocular evidence and medical evidence. He submitted that in F.I.R. It is stated that said Abdul Kaleem was having bullet injuries on his right side arm and chest whereas in medical evidence there are shown 7 entry wounds and 6 exist wounds and none of them on an arm. He submitted that two of the wounds are on leg and in F.I.R. No such mention has been made. Learned counsel referred to Jam Sadiq Ali v. The State 1989 PCr.LJ 1910, Manzoor v. The State 1992 PCr.LJ 561, Inamullah v. The State 1990 PCr.LJ 529, Muhammad Rafi v. The State 1992 PCr.LJ 2399, Janib Chandio v. The State 1997 MLD 161, PLD 1983 SC 82, Raza Muhammad Sial v. The State 1988 SCMR 1223, Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97, Syed Muhammad Firdaus and others v. The State 2005 SCMR 784, Rais Wazir Ahmad v. The State 2004 SCMR 1167 and The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322.
4. Mr. Salahuddin Panhwar, learned counsel for the complainant submitted that both the parties are transporters and admittedly there is business rivalry and enmity between the parties. The applicants have been involved in a number of criminal cases and have a history of crime trailing behind them. He submitted that applicants have been named in the F.I.R. And clear role has been attributed to them in the F.I.R. He submitted that F.I.R. Was lodged promptly and there is no material discrepancy between ocular and medical evidence. He further submitted that there are three eye- witnesses Saleem, Aslam and Rizwan and their statements under section 161, Cr.P.C. Were recorded within time, whereas statements of three witnesses relied upon by the applicants were recorded on 2-10-2009 i.e. After a delay of about 20 days there is no explanation for such a delay. He submitted that in fact such witnesses were managed after pre-arrest bail was obtained by the applicants. He further submitted that applicants have been appearing before the trial Court for the purpose of trial of the case and there is no earthy reason why they could not appear for the purpose of making application for pre-arrest' bail before the trial Court. Learned counsel further submitted that recovery cannot be effected because firstly, the applicants are not cooperating in investigation and secondly since they have not been arrested and this is hampering investigation and recovery. He further submitted that the witnesses who have been referred by the learned counsel for the applicants are not even named as witnesses in the challan. Learned counsel relied upon Jan Muhammad v. The State 2000 MLD 1046, Allah Bachayo and another v. The State 2009 PCr.LJ 503, Rehmatullah and another v. The State PLD 2008 Kar. 170, Mumtaz v. The State 2002 PCr.LJ 568, Manzoor Hussain v. The State PLD 2008 Kar. 157, Riaz Ali v.. The State 2008 SCMR 884, Mamaras v. The State and others PLD 2009 SC 385, Mazhar Hussain v. The. State 2009 MLD 747, Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292 and Malik Noor Ahmad v. The State PLD 1993 Lah.' 500.
5. Learned Deputy Prosecutor-General, opposed the bail and supported all the grounds submitted by the Advocate for the complainant. She further submitted that this is an application not under section 497, Cr.P.C. But under section 498, Cr.P.C. And guidelines and grounds are ,different in case of bail application under section 498, Cr.P.C. Than in case of application under section 497, Cr.P.C.
6. While exercising his right of reply, learned counsel for the applicants submitted that final challan is yet to be submitted.
7. I have considered the submissions made by the learned counsel and have also gone through the record of the application as well as case-law cited by the learned counsel.
8. In Jam Sadiq Ali's case (supra) Mr. Justice Ajmal Mian, Chief Justice, (as his Lordship then was) observed that even in case of pre-arrest bail High Court should touch upon merits of the case.
However, in that case the petitioner's name was not mentioned in the F.I.R. But was included after expiry of nearly four years. No overt act was attributed to the petitioner as to the actual killing. The facts of that case are therefore, quite distinguishable.
9. In Manzoor's case (supra), fatal injury had been alleged to have been caused to the deceased by the petitioner. However, since it was a case of cross-versions, the High Court observed that it was yet to be determined whether out of the two it was the complainant party or the accused party who was the aggrieved party and would have launched the assault. Bail was consequently allowed. Again this case is distinguishable. In the present case, the incident is that only one person has been killed and there is no allegation whatsoever by the applicants against the other party of having resorted to any crime on the date of the incident
10. In Inamullah's case (supra), it was alleged that the petitioner and his co-accused overpowered the deceased and brought him to their land by dragging him and killed him by firing. However, it was alleged that the fire by Inamullah missed the victim and hit his co-accused. It was version of the accused side that other party had also fired. It was in this context of the facts that Court observed that the question as to which version is correct is the question which shall be determined by the trial Court on the basis of evidence. For the time being, on the face of record it was observed that there were three conflicting versions available on the record. It was held to be fit case for further inquiry. In Muhammad Rafi's case (supra) there were two versions and consequently it was held to be a case of further inquiry and the accused was allowed bail. Same was finding in Janib Chandio's case (supra).
11. In Raza Muhammad Sial's case (supra), it was a crime registered under Anti-Corruption laws. It was alleged that on physical verification of wheat stock shortage of 30,561 bags were found. It was pleaded by the petitioner that though he was incharge of the godown but he had nothing to do with receipt of bags or delivery of bags. The High Court relied upon certain chits written by the petitioner addressed to the co-accused in respect of certain amounts of money. It was argued in the Supreme Court that the chits did not convey any sensible meaning and nothing could be deduced having any bearing and at least that might be material for further inquiry. Petitioner was held entitled to grant of pre-arrest bail.
12. In Ajmal Khan's case (supra), it was held that bail can be granted in a case of capital charge on the plea of alibi of peculiar facts and circumstances of that case so justify the evidence in favour of grant of bail. The Supreme Court in this case distinguished old authorities on the proposition which was to the effect that plea of alibi was not available to the accused therein. However, on merits in that case the Supreme Court did not accept plea of alibi at the bail stage.
13. In Muhammad Firdaus's case (supra) none of the two accused doctors were nominated in the F.I.R. Facility of bail was extended to them by the Supreme Court because Supreme Court came to the conclusion that in any case the accused could not be punished ultimately for death or imprisonment for life under section 322, P.P.C., could only be liable to Diyat. This was the main reason for not denying concession of bail.
14. Much reliance was placed by the learned counsel on Rais Wazir Ahmad's case (supra). Facts of the case were that petitioner was involved in a case registered under section 506, P.P.C. Initially investigation was carried out by the concerned authorities but no case cognizable was made out by the police and therefore, case was not registered. Ultimately an application was submitted by the complainant before the Additional Sessions Judge, who after having gone through it directed police to register a case and if subsequently, it was found that no case is made out then F.I.R. Was to be discharged. Apprehending his arrest the petitioner approached High Court for bail before arrest. He was admitted to interim bail. The High Court later on declined to confirm the bail and directed the petitioner to approach Sessions Court for getting himself admitted to bail. Against that order petition was filed in the Supreme Court. The Supreme Court obsetved 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 an 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 Sharma 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."
15. The last case, relied upon by the learned counsel for the applicants was Malik Mukhtar Ahmad Awan's case (supra); On 17-8-1989, it was alleged that while members and office-bearer of Jamiat-i-Tulba Islam, were proceeding to the college, they were surrounded by a number of persons, some of them resorted to firing and two persons were injured one of whom died at the spot. In the complaint it was alleged that Malik Mukhtar Ahmed Awan had called a meeting of the People's Students Federation at his house in Multan and had prepared a hit list. It was alleged that the murder took place in consequence of such acts. Malik Mukhtar Ahmed Awan was a sitting Minister in the Federal Government. After registration of the case attempts were made to arrest him but he avoided by keeping away from Province of the Punjab. Sindh High Court allowed him interim protective bail so that he could approach Sessions Judge, Multan. Lahore High Court then admitted him to pre-arrest bail. That pre-arrest bail was subsequently confirmed by the High Court on merits.
16. On the other hand, learned Advocate for complainant relied upon Allah Bachayo and another v.
The State 2009 PCr.LJ 503. In this case contents of F.I.R and statements of prosecution witnesses had, prima facie, established presence of accused at the place of occurrence. The accused had even not approached the trial Court for pre-arrest bail, as demanded by the rule of propriety. Pre- arrest bail was declined by the High Court. It should however, be noticed that there was no submission whatsoever in this case as to why accused did not approach the trial Court for pre- arrest bail.
17. In Rehmatullah and another v. The State PLD 2008 Kar.
170. The accused has been nominated in the F.I.R. With clear role attributed to him. .The accused did not join investigation and had been shown as absconder. In these circumstances interim pre- arrest bail already granted to the accused was recalled. This case can be distinguished because in the present case there is no allegation whatsoever by the D.P.G. That the accused is not cooperating with the investigation.
18. In Riaz Ali's case (supra), pre-arrest bail application had been rejected by the High Court. The Supreme Court observed that F.I.R. Was lodged promptly and specific role has been attributed to the petitioner. Supreme Court further observed that consideration for grant of pre-arrest bail were different from consideration for grant of post-arrest bail.
19. In Mamaras's case (supra), it was observed that a person abetting commission of an offence was liable to the same punishment which was prescribed for person committing the offence.
20. Latest pronouncement by the Supreme Court is in Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427. The Supreme Court laid down guidelines as follows:---
(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 its 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) Ever 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 re-affirmed.
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 perso:s 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 a 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.
21. It is in line of these guidelines laid down by the Supreme Court that this case has to be decided.
Pre-arrest bail was granted to the applicants on 29-9-2009. It was granted for 7 days so as to enable them to approach the trial Court. According to the applicant they approached the trial Court for bail. It was an application for grant of permission to hear the application in absence of the applicants/accused persons. It was prayed in the application that the complainant party duly armed with deadly weapons was inside and outside the Court premises in order to commit murder or cause physical harm to the applicants/accused. On this application the Court below passed the following order:--- "Heard Mr. Aftab Ahmed Warriach, Advocate on 'instant application and perused the contents thereof which reveals that neither any section has been applied in this application under which this application is moved nor there is any provision to entertain the pre-arrest bail application in absence of applicants/accused. Learned Advocate also failed to satisfy this Court as to whether the pre-arrest bail application can be entertained without causing appearance of applicants/ accused.
In a case-law reported in 1999 MLD 1922 it has been held that privilege of pre-arrest bail can only be availed of by a person who surrenders before the Court. Therefore, instant application merits no consideration which is hereby dismissed."
' Is this a reasonable, plausible and justifiable cause? This is the crux question.
22. In Malik Mukhtar Ahmed Awan's case, the bail was allowed to a sitting Minister by the High Court without him approaching the trial Court. In Rais Wazir Ahmad's case, Supreme Court has clearly held that though normally the person must approach .The original Court having jurisdiction but this was held to be an absolute rule as depending upon compelling circumstances of each case a person can approach the High Court directly by invoking its constitutional jurisdiction.
23. Jurisdiction to grant bail is concurrent. No hard and even rule can be laid down mandating in each and every case that a person must be compelled to go to the trial Court and file pre-arrest bail application there instead of directly coming to the High Court. In appropriate cases High Court can grant interim bail and can even confirm such bail to a person who has not gone to the trial Court for obtaining bail before arrest. If there are compelling, exceptional circumstances and reasonable and plausible explanation High Court should not hesitate in coming to the succour of petitioner before it.
24. What is to be seen in this case is whether there is reasonable and, plausible justification.
Justification advanced by the applicants is that they approached the Court below with pre-arrest bail application, after getting protective bail from this. Court but the Court premises was surrounded by the opposite party who were armed with deadly weapons. The same applicants appeared before the trial Court on 12-11-2009. They have produced a copy of the Court diary. There is no submission recorded in the diary that they had any such apprehension on that date. It is strange; if they go to the Court for trial they do not have the apprehension and if they go to the Court for pre-arrest bail apprehension the surrounding become much more serious. Therefore, in my opinion this is not a case where the party cannot approach the trial Court. Malik Mukhtar Ahmad Awan's case, is on a different footing and with different facts altogether. That was a case of Provincial Government after a Minister of political party who was in power in the centre. The present case in the court below is listed for 17-12-2009. The accused are to appear in the trial Court on that date. I convert this bail application into a protective bail and grant them protective bail till December, 17th. Thus giving them ample time to move pare-arrest bail application before the trial Court.
' Criminal bail application is disposed of in the above terms.