Petitioner Ali. Qaswa r Bokhari son of Syed Mushtaq Hussain Bokhari, Additional Director FIA Headquarter, Islamabad, being accused in case FIR No, 35/2009, registered on 23.5.2009 at Police Station, FIA Crimes Circle, Peshawar, under Sections 161/165- A/170/420/109 PPC read with Section 5(2), Prevention of Corruption Act, 1947, has filed this petition for bail before arrest pending the final decision of the case against him.
2. Initially, on registration of case against him, he through his application dated 9.7.2009 approached the learned Special Judge, Anti Corruption(Central), NWFP, Peshawar, who on the same day admitted him to ad-interim pre-arrest bail on his furnishing bail bonds in the sum of rupees one lac with two sureties each in the like amount. Later on, on receipt of record and after hearing arguments when the case was fixed on 29.7.2009 for orders, the accused-petitioner did not turn up and instead an application for his exemption from personal appearance was moved on the said date on the ground of illness of his mother. Tic Court accordingly while allowing the exemption from personal appearance adjourned the case for announcement of order to 31.7.2009, which has been incorrectly typed as 31.8.2009.
3. On the said date i,e, 31.7.2009 (again incorrectly typed as 31.8.2009), the accused-petitioner did not attend the Court inspite of repeated calls and thus the learned Special Judge through his order of the said date recalled the ad-interim pre-arrest bail granted to accused-petitioner and dismissed his application due to his non-appearance.
4. Instead of approaching the said Court, the accused-petitioner approached this Court through the present petition, which was filed on 17.8.2009 and placed before the Court on the same day and the petitioner was accordingly allowed ad-interim pre-arrest bail on his furnishing bail bonds in the sum of rupees three lac with two sureties each in the like amount.
5. Mr. Muzammil Khan, Deputy Attorney General for the State raised a preliminary objection and stated that though this Court and the Special Judge both have concurrent jurisdiction in the matter of bail but propriety and decency demand that first the lower Court should be approached and after decision of the said Court on merits one way or the other, approach to this Court should be made. It was further argued that particularly in the instant case when the accused-petitioner had initially approached the said Court, then in all fairness he should have attended the said Court on the date fixed for orders and if he had for certain compelling reasons failed to do so, he could have moved an application for restoration of his BBA petition by appearing in the said Court on a subsequent date. He accordingly argued that it would be in the interest of justice -and fair play if this Court abstain from giving findings on merits of the case and instead directs the accused- petitioner to approach the Court of Special Judge. He placed reliance on case law reported as 2000 P.Cr.LJ 110, 2009 P.Cr.LJ 690, 2009 YLR 1140, 2007 M LD 73, 2003 SCMR 1407, 2006 P.Cr.LJ 612, 1999 M LD 1222 and 2002 SCJ 492.
6. As against that, Mr. Abdul Latif Afridi, Advocate, learned counsel for accused-petitioner while strongly opposing the objection vehemently argued that the preliminary objection raised by the learned Deputy Attorney General amounts to take refuge of technicalities as the prosecution has no case at all on merits. He while placing reliance on the case reported as 2004 SCM R 1167 titled Raees Wazir Ahmad Vs. The State, argued that the august Supreme Court has held that if the High Court entertain application for pre-arrest bail and allows ad-interim bail, then the High Court should decide the same on merits instead of dismissing it on technical grounds. He while entering into merits of the case argued that the complainants of the instant case have moved an application that they have been paid back their money by the persons who had received the same from them and further argued that the offence, as is apparent from the FIR, is alleged to have been committed at Islamabad, therefore the registration of the case at Peshawar is a sheer act of mala fide. The learned counsel also referred to 2002 SCMR 1171, PLD 1989 SC 147, 2007 M LD 428, 2002 SCM R 1373, PLD 1989 SC 347, 2004 YLR 1345, 2004 M LD 208 and PLD 1995 SC 34.
7. Mr. Fazal Elahi Khan Panjpiri, Advocate, learned counsel for the complainant supported the grant of bail.
8. I have considered the respective contentions of both sides and while avoiding any discussion on merits-of the case, lest it may prejudice case of either side before the Special Judge at bait stage or even during the trial, I proceed to dispose of the preliminary objection as under.
There can be no cavil with the proposition that powers to grant pre-arrest and post arrest bail are concurrent in the Special Judge as well as in this Court but propriety and decency requires approach in the first instance to the original Court i,e, Special Judge and it is, in very exceptional and compelling circumstances where an accused can approach this Court directly. Since in the instant case the accused-petitioner had approached the learned Special Judge and rightly so, therefore he should have attended the Court on the day when the order was to be announced but for certain compelling reasons when he could not attend the Court, resulting into the dismissal of his application in default, he should have then moved an application explaining his absence on the date fixed and requested for restoration of the same.
9. The procedure adopted in the instant case if allowed and approved by finally deciding this BBA petition on merits, it would open a flood gate of similar petitions and would be mis-used. Every-one would initially move applications before the trial Court for grant of pre-arrest bail and after enjoying the same for some length of time they would disappear and start approaching this Court, which would on the one hand establish a bad precedent while on the other add to the work load of the Courts. The law laid down by august Supreme Court in the case of Raees Wazir Ahmad ibid also lays down the law that normally a person against whom a case has been registered may approach in the first instance the original Court for bail before arrest because propriety so demands.
10. Accordingly, while rejecting this application for pre-arrest bail, I direct that the petitioner shall not be arrested by any agency in the instant case till 11.11.2009, on which date he shall appear before the Special Judge, who on his appearance should treat his application for his pre-arrest bail, which was earlier dismissed in default as restored and decide the same on merits strictly in accordance with law and record of the case without being influenced by any observations made in this order or by his own order passed on 31.7.2009 (incorrectly written as 31.8.2009). Office is directed to immediately send the record of the said Court alongwith other record to the Special Judge, Anti-Corruption (Central), NWFP, Peshawar alongwith a copy of this order.
The Deputy Director (Law) FIA is also directed to attend the said Court on the said date in order to avoid any further delay in the disposal of the case.