' MUHAMMAD TASNIM, J.---Applicant is booked in F.I.R No,32 of 2010, under sections 302, 324, 452, 147, 148, 149, 114, 337-A(i), 337-H(2) 337-F(i) P.P.C., Police Station Khensar, District Tharparkar.
2. The applicant had directly approached this Court through the present bail application. Along with this bail application, an application under Rule 7 of the High Court Benches Rules, 1987 was also filed, which was taken up by the honourable Chief Justice of this Court (as he then was) and ordered that above matter may be entertained at principal seat at Karachi according to roster.
Accordingly, applicants were granted interim pre-arrest bail on their furnishing surety in the sum of Rs,1,00,000 (Rupees One Lac) each and P.R bond in the like amount to the satisfaction of Nazir of this Court per order dated 21-12-2010.
3. The facts leading to the present controversy, as set out in the F.I.R. Are that complainant and his sons namely Hussain and Qadir Bux were living in the same house. It is stated that on 13-9-2010 while complainant along with his sons was sitting in the house, they heard the loud sound of the song from a car passing in front of their house, on which son of complainant Hussain intercepted the said car and asked the driver not to play song loudly in front of the house. The driver of the car namely Mehran alias Mehlo son of Umeed Ali got annoyed and went to his village. Thereafter from his village he brought a number of persons namely Haji Achaar son of Haji Rahim Rahimon, 2.
Nizam son of Saleem Rahimon,
3. Photo son of Waryam,
4. Roshan son of Umeedo,
5. Ali Muhammad son of Muhammad Ramzan Rahimon,
6. Islamuddin son of Muhammad Ali, 7.. Ahmed Ali son of Natho,
8. Loung son of Waryam,
9. Abdul Rauf son of Umeed Ali, Abdul Khalique son of Diloo Rahimon, Nawaz Ali son of Allah Dad Rahimon, Ameeruddin son of Photo Khan,
13. Moto son of Photo Khan,
14. Umer-Din son .Of Sultan alias Sartho.
15. Abdul Rehman son of Alam Rahimon. On reaching, all the persons they asked complainant as to why his son Hussain prohibited Mehran from playing of tape recorder, in the meanwhile Achar made aerial firing and instigated others to catch complainant and not to spare him. On the instigation of Achaar, within the sight of guests of complainant, Sardar son of Hayat and Akbar son of Siddique Sameja, Nizamuddin caused straight hatchet blow on the head of Hussain. Photo and Roshan also caused straight hatchet blows on the head of son of complainant namely Hussain with intention to kill, then he fell down on the ground, Islamauddin caused straight hatchet blow on the head of complainant, ' Ali Muhammad caused cudgel blow on the head of complainant and Abdul Khalique caused cudgel blow to the son of complainant namely Abdul Qadir and others' also gave beatings. Sardar son of Hayat and Akbar Ali son of Siddique while intervening, making entities got spared complainant and his son. The above said all accused persons while making aerial firing, boarded in vehicles along with lathies and went towards village Kheme-jo-par. Thereafter having arranged Taxi complainant party came at Police Station Khensar. From where due to seriousness of injured persons got such letter for treatment and left for Umerkot, after getting treatment, from where they were referred and left for Hyderabad Lal Bati Hospital, reached there and got treatment.
The son of complainant expired in the hospital, from where, complainant came to Taluka Hospital Chachro, where his son's postmortem was conducted and after completing police formalities by S.H.O Khensar, reported the matter.
4. Mr. Muhammad Ashraf Kazi, learned counsel for the applicant, in support of this bail application, has submitted that 'name of the applicant neither appears in the F.I.R nor any witness had deposed against him under section 161, Cr.P.C. Statement, but in the challan submitted before the learned trial Court the applicant's name has been incorporated as an accused person. In the circumstances, present bail application has been filed by the applicant directed in this Court. He further submitted that present applicant has been falsely implicated in this case and he has no concern whatsoever. He has further submitted that name of the applicant has been added in the challan as an accused person with mala fide intention and just to humiliate him. He further submitted that neither the name of the applicant appeared in the F.I.R nor any of the prosecution witnesses assigned any role to the present applicant with the commission of offence. He also submitted that some of the accused persons named in the F.I.R who have been assigned active role in the commission of offence have already been admitted to bail by the learned trial Court, whereas remaining seven accused persons whose names appear in the F.I.R. And role has been assigned to them have filed Criminal Bail Application No,1006 of 2010 before. This Court directly and per order dated 27-9-2010 all the applicants named in Criminal Bail Application No,1006 of 2010 were admitted to interim pre-arrest bail. Learned counsel further submitted that no role, whatsoever, has been assigned to the present applicant hence he is entitled to concession of bail in view of the fact that number of accused persons named in the F.I.R have already been admitted to bail. In support of his contentions, learned counsel for applicants has relied upon the following case-law:
(1) RATS WAZIR AHMAD V. THE STATE (2004 SCMR 1167),
(2) SULTAN AHMED SIDDIQUI V. THE STATE (PLD 2010 KARACHI 110),
(3) NADIR AND 2 OTHERS V. THE STATE (1985 PCr.LJ 247),
(4) JAFFAR AND OTHERS V. THE STATE (1980 SCMR 784),
(5) SHOAIB MEHMOOD BUTT V. IFTIKHAR-UL-HAQ AND OTHERS (1996 SCMR 1845)
(6) NOOR MUHAMMAD V. THE STATE (2009 SCMR 324),
(7) DILMURAD V. THE STATE (2010 SCMR 1178),
(8) Criminal Bail Application No,472 of 2010 (DECIDED BY THIS COURT ON 22-3-2011), AND
(9) KOURO AND ANOTHER V. THE STATE (2004 YLR 2434)
5. On the other hand Mr. M. Waheed Kazi, learned counsel for the complainant has vehemently opposed the maintainability of the bail application directly filed before the High Court without approaching to the learned trial Court. He further submitted that failure on the part of the police for not registering F.I.R promptly will not give any benefit to the applicant for grant of bail as, according to learned counsel,' delay cannot be attributed to the complainant. He further submitted that one innocent person has died in the incident, hence present applicant is not entitled to bail. He further submitted that interim pre-arrest bail granted to the applicant be recalled and bail application be dismissed. In support of his contentions, learned counsel for applicants has relied upon the following case-law:--
(1) RIAZ AHMAD V. THE STATE (2009 SCMR 725),
(2) MASOOD AHMED ALIAS MUHAMMAD MASOOD AND ANOTHER V. THE STATE (2006 SCMR 933),
(3) ARIF DIN V. AMIL KHAN AND ANOTHER (2005 SCMR 1402),
(4) NASIR MUHAMMAD WASSAN AND ANOTHER V. THE STATE (1992 SCMR 501),
(5) MUHAMMAD SAFDAR AND OTHERS V. THE STATE (1983 SCMR 645),
(6) MUHAMMAD AZIM V. THE STATE (PLD 1988 Supreme Court 84),
(7) SHAUKAT MANZOOR V. THE. STATE (1981 SCMR 394),
(8) MUHAMMAD JAFFAR LEGHARI AND OTHERS V. CHAIRMAN, FEDERAL LAND COMMISSION AND OTHERS (1981 SCMR 1103),
(9) MUHAMMAD SHAFIQ AND ANOTHER V. THE STATE (1982 SCMR 384),
(10) IQBAL V. THE STATE (1982 SCMR 84),
(11) ABDUL RASHID V. THE STATE (1985 SCMR.980),
(12) MUHAMMAD AMIN AND ANOTHER V. THE STATE (1987 SCMR 1522), AND
(13) RANA MUHAMMAD ARSHAD V. MUHAMMAD RAFIQUE AND ANOTHER (PLD 2009 427).
6. On the other hand Ms. Seema Zaidi, Assistant Prosecutor-General Sindh has also opposed the grant of bail and has submitted that an innocent person has died and there is ample evidence available on record, which connects the present applicant with the commission of offence. She further submitted that interim pre-arrest bail granted to the applicant be recalled.
7. I have heard the learned counsel for the parties and have perused the record so also case-law cited at bar.
8. With regard to the point of maintainability of the present bail application before this Court, applicant has disclosed the reasons for approaching this Court directly in the bail application that when applicant tried to surrender and file bail before arrest application before learned Sessions Judge, Mithi through his Advocate, he came to know that large number of persons of complainant party had gathered there and they have also brought the police which has encircled the Court, in the circumstances the applicants decided to approach the Circuit Bench Hyderabad of this Court for making application for bail before arrest. While the applicant was coming to file bail application before the Circuit Bench Hyderabad the applicant received telephone cell that complainant has also brought police for the arrest of the applicant at the Circuit Bench Hyderabad as well in the circumstances applicant travelled to Karachi and made application under Rule, 7 of the High Court Benches Rules, 1987, which was granted and it was ordered that matter may he entertained at the principal seat. Even otherwise it is a consistent view of the superior Court that once interim pre- arrest bail has been granted by the Court the bail application be decided on merits instead of dismissing it on technical ground.
9. In the case of Rais Wazir Ahmad (supra), the honourable Supreme Court of Pakistan while dealing with the point of direct filing of bail application before High Court has observed in the following words:-- .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 bf 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 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 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."
10. In the above' quoted judgment the honourable apex Court has held that if there are compelling circumstances the person can approach the High Court without filing his bail application before the lower judicial forum. In the present case, as stated above, the applicants tried their level best to file bail application before the learned Sessions Judge, but due to fear of their arrest they tried to approach to the Circuit Bench of this Court at Hyderabad, but when they found 'police available at Circuit Bench Hyderabad they travelled to Karachi and filed present bail application. In view of above quoted Supreme Court judgment the bail application filed by the present applicants is maintainable. Similar view has also been expressed in the cases of The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322), Nadeem Hamid v. The State (PLD 1997 Karachi 494) and Shamrez Khan v. The State (1999 PCr.LJ 74).
11. It is an admitted position that there is delay of five days in lodging F.I.R. It is also an admitted position that name of present applicant does not appear in F.I.R. No statement under section 161, Cr.P.C. Of any prosecution witnesses has been brought to the notice of this Court, who had named present applicant or assigned any role to him. It is also an admitted position that numbei of accused persons whose name appear in the F.I.R and were assigned active role have already been admitted to bail by the learned trial Court. Similarly the interim pre-arrest bail application filed by co-accused persons have been granted and their interim bail has already been confirmed.
Prosecution has failed to point out any material, which connects the present applicant with the commission of offence. On merits the applicants has made out the case of further inquiry in terms of subsection (2) of section 497, Cr.P.C. In the circumstances, interim pre-arrest bail granted to the applicant per order dated 21-12-2010 is hereby confirmed on the same terms and conditions.
12. The case-law cited by the learned counsel for the complainant have been examined. All the judgments cited by learned counsel for the complainant are distinguishable on facts and are not applicable to the case in hand.
13. Needless to mention that observations made in this order are tentative in nature and shall not affect the pending trial. The learned'trial Court shall pass the final judgment on the basis of evidence that may come on record and the law.
14. Bail application is disposed of in the above terms.