SHAHID ANWAR BAJWA, J.---F.I.R. No.158 of 2010 was recorded at Police Station Matli, District Badin on 21-12-2010 at 1330 hours for an incident which occurred at 1230 hours. It was alleged by the complainant Gul Hassan that he and his friend came out of his house and were close to a shop they saw his brother Muhammad Hashim sitting with his friend Muhammad Akram Notkani. At about 1230 afternoon the present applicant along with his nephew, son and an unknown person came. Present applicant gave hakkal. His nephew fired at Muhammad Hashim which hit later on his chest. Applicant's son fired at Muhammad Hashim which hit him on his stomach and joint of his leg while unknown third person also fired which hit wrist of Muhammad Hashim. Muhammad Hashim fell down and nephew of the applicant fired at his face while he was lying on ground. When complainant and Muhammad Akram came forward and tried to stop them they made straight fires which hit Akram on his right leg and he fell down. Thereafter the accused persons escaped.
2. Learned counsel for applicants made the following submissions:--
(i) On the point that this pre-arrest bail application has been directly filed in this Court learned counsel for applicant submitted that it is a case where old enmity is alleged going back to 1986 and, therefore, direct pre-arrest bail application would be maintainable in this Court. He relied upon Rais Wazir Ahmed v. The State (2004 SCMR 1167) and judgment by this Bench in the case of Sultan Ahmed Siddiqui and 3 others v. The State (PLD 2010 Karachi 110).
(ii) In respect of applicant in Bail Application No.13 of 2011 learned counsel submitted that at best case against him is of ineffective firing.
(iii) As regards applicant. In Bail Application No.120 of 2011 learned counsel for applicant submitted that the applicant is not named in the F.I.R. Although he belongs to the same family.To which other co-accused belong. He further submitted that there are three witnesses; complainant, one Muhammad Yaqoob and injured Muhammad Akram. Learned counsel submitted that statement of Muhammad Akram was recorded 8 days after the incident and it is alleged tha, Muhammad Akram had been injured and he received injury in the flesh of his thigh. All along Muhammad Akram was in a position to talk and after 8 days the said Akram disclosed name of Nawaz in statement under section 161, Cr.P.C. He further submitted that name of Nawaz figured nowhere else prior to the statement of Muhammad Akram.
(iv) Regarding alleged enmity learned counsel submitted that brother of complainant Hashim was murdered in 1986. The accused persons were tried and convicted and they have filed appeal against their conviction which appeal is still pending. Deceased Hashim was one of the accused persons who during the trial absconded. Learned counsel submitted that 25 years is a long period for enmity to continue. He relied upon Waris Muhammad v, Haji Ahmed Yar and another (1976 SCMR 182), Muhammad Rafiq v. The State (1975 SCMR 483), Noor Muhammad v. The State (2008 SCMR 1556) and Ghulam Qadir and 2 others v. The State (2008 SCMR 1221).
3. Mr. M. Ismail Memon learned counsel for the complainant submitted that Hashim has been nominated in the F.I.R. And there has been case of common intention. He relied upon Malik Sikander Awan and 2 others v. The State (1999 PCr.LJ 568). Learned counsel submitted that this application has been directly filed in this Court and, therefore, it is not maintainable. He relied upon Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427).
4. Mr. Muntazir Mehdi learned Assistant Prosecutor-General opposed bail application on the ground that there is specific role of injury by applicant Hashim and it is specifically stated that Nawaz was 4th person in the F.I.R.
5. I have considered submissions of the learned counsel and have gone through the record as well as case law cited at the bar.
6. First question to be decided is whether pre-arrest bail application without approaching trial Court first would be maintainable before this Court. In Rais Wazir Ahmed's case (supra) the following observations were made:-- "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 Ahmed v. The State PLD 1974 Lah. 256. The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed 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 if 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 bial, then the Court instead of rejecting plea of the petitioner for bail before arrest ought to have decided application on merits."
7. In Rana Muhammad Arshad's case (supra) the honourable Supreme Court elaborately laid down law in respect of grant of pre-arrest bail applications which are moved in the first instance in the High .Court. It may be pointed out that in Rats Wazir Ahmed's case it was Bench of three Judges whereas in Rana Muhammad Arshad's case there was a Bench of two Judges. In Rais Wazir Ahmed's case it was observed that if such application has been entertained and interim bail has been granted, instead of dismissing it on technical grounds it should be disposed of on merits. It appears that Rais Wazir Ahmed governs cases where interim bail is granted. In any case, it is judgment by a three members Bench. Therefore, objection of the learned counsel for complainant, regarding maintainability of bail application under the pecuniary circumstances is overruled.
8. As far as Muhammad Hashim, applicant in Criminal Bail Application No.13 of 2011, is concerned, the only role alleged against the applicant in the F.I.R. Is that he firstly gave proverbial hakkal and thereafter Shahjehan Khoso, Suhail Raza and the unknown person fired on the deceased and Muhammad Akram had been fired upon and received injuries in his legs. Hashim along with others made good his escape while firing. It is not stated in the F.I.R. That any injuries to the deceased were caused by Hashim and in respect of injury received by Mohammad Akram it is stated that "they" made straight fires towards Akram. Now the "they" consisted of 4 persons and injury received by Mohammad Akram is only one. It is not stated as to which one caused injury to Akram. It is, therefore, at best a case of further inquiry.
9. As far as applicant Nawaz is concerned, he is not named in the F.I.R. Muhammad Akram and Muhammad Yaqoob who in their statements recorded after 8 days of the incident named Nawaz.
Mohammad Yaqoob was not injured at all. Injury received by Mohammad Akram was in his thigh and there is no material whatsoever to suggest that while being taken to hospital Muhammad Akram was not in a position to talk. In any case, Muhammad Yaqoob was not injured at all, F.I.R.
Was registered after injured person and dead body had been taken to the hospital and neither Yaqoob nor Akram communicated to the complainant name of the 4th one. This creates doubt and it is settled law that benefit of doubt, even at the bail stage, must be given to the accused person standing trial.
10. Result of the above discussions is that bail, already granted to the applicants, is confirmed on the same terms.