Since common question of law and fact is involved in the connected applications for anticipatory bail filed by the petitioner, arising out of different FIRs, therefore this order shall also dispose of the following applications for anticipatory bail :-- Crl. Misc. Nos, 4754-B/2011 to 4759/2011 Crl. Misc. Nos, 6468-B/2011 to 6473/2011 and Crl. Misc. Nos, 6475/2011 to 6485/2011.
Invoking the jurisdiction of this Court, the present petitioner seeks anticipatory bail in different FIRs 23 in number registered under Section 489-F of the Pakistan Penal Code, 1860 at Police Station Model Town, Gujranwala at the instance of Respondent No, 2.
2. Briefly prosecution version contained in the Report under Section 154 of The Code of Criminal Procedure, 1898 recorded on the strength of written complaint of Respondent No, 2 is that he entered into executed contract of sale in respect of land owned by him situated in Muslim Chak and present petitioner gave him a cheque regarding sale price to be encashed in future, when he made contact with petitioner, time was sought for encashment of cheque and after sometime when cheque was presented, it was dishonoured due to insufficient funds and closure of account.
3. Heard adversaries at length and perused the record.
4. Since the petitioner directly approached this Court to have the premium of anticipatory bail, therefore, objection has been raised at the instance of not only by learned Deputy Prosecutor General but also by learned counsel for complainant regarding maintainability of petition before this Court. Since objection on legal premises goes to the root of the petition, therefore, it is desirable to deal with this objection first of all.
5. Learned counsel for petitioner while making reference to the facts of the case maintained that petitioner has already approached this Court for qaushment of FIR along with other FIRs, got recorded by different persons and as such in such exceptional circumstances, the petition is maintainable. Making reference to the order dated 21.3.2011 recorded by my learned brother Sh.
Najam-ul-Hassan, J. it was argued that present petitioner has approached this Court to have the premium of anticipatory bail on the advise of this Court. Placing reliance upon the dictum laid down in "The State v. Malik Mukhtar Ahmad Awan" (1991 SCMR 322), "Shamrez Khan v. The State"
(1999 PCr.LJ 74) and "Sh. Zahoor Ahmad v. The State" (PLD 1974 Lahore 256), maintained that exceptional circumstances justifies the action of the petitioner to approach this Court directly.
6. On the other hand, learned counsel for complainant maintained that no such exceptional circumstances exists permitting the petitioner to invoke the jurisdiction of this Court directly and as such the petition is liable to be dismissed with the direction to him to approach the Court of first instance. Reliance is placed upon "Rana Muhammad Arshad v. Muhammad Rafique and anothers (PLD 2009 Supreme Court 427), "Haji Muhammad Ali Khan and 3 others v. The State" (2010 PCr.LJ 310) and "Faqir Muhamamd and 2 others v. The State" (2010 YLR 457)
7. Similar proposition was moot point before this Court in "Sh. Zahoor Ahmad v. The State" (PLD 1974 Lahore 256), in which it was held at page 265 that all the facts creating exceptional circumstances neither can be enumerated nor can they be laid down with any specification or it will not be out of place to visualize some broad outlines in this behalf which are re-produced for ready reference:--
(a) Where the High Court has earlier dealt with any matter which has direct relevancy to the subject-matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction;
(b) Where the Presiding Officer of the lower Court is not available and his substitute it is either difficult to locate or even if locatable in unable to give substantial relief in a matter; as sometimes, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code;
(c) Where the Presiding Officer of the lower Court for any personal disqualification is unable to deal with the matter and during the time that the matter goes before another Presiding Officer of co- ordinate jurisdiction; there might be likelihood of irreparable damage or loss to the petitioner; (d)where the petitioner is physically incapacitated to go to the Court concerned and seek redress; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly; (e)if there is serious and genuine apprehension of political victimization at any level and the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved directly instead of an approach to the lower Court;
(f) where the case is such that it combines several questions in some of which the High Court and the lower Court have concurrent jurisdiction but in others, the lower Courts have no jurisdiction; e.g., if the matter requires exercise of jurisdiction under any specific provision of Criminal Procedure Code as also under the inherent power of the High Court under Section 561-A the matter may directly be moved in the High Court;.
(g) where cases are spread over several districts and/or there is dispute or doubt about jurisdiction.
8. The Honourable Supreme Court of Pakistan, while making reference to the dictum laid down in the case of "Sh. Zahoor Ahmad (PLD 1974 Lahore 256), has held in The State vs. Malik Mukhtar Ahmed Awan" (1991 SCMR 322) that it is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance move Court of Sessions for pre-arrest bail before approaching High Court. Similar rule of law was enunciated in case of "Shamrez Khan v. The State" (1999. PCrLJ 74) relied upon by the learned counsel for petitioner.
9. Keeping in view the yardstick enunciated in the "Sh. Zahoor Ahmad v. The State" (PLD 1974 Lahore 256) now I will deal with the argument canvassed by learned counsel for petitioner in order to justify the action of the petitioner directly approaching this Court. Reliance placed upon the order dated 21.3.2011 made by my learned brother Sh. Najam-ul-Hassan, J. suggesting that the petitioners are at liberty to file application for bail, if so advised is misconceived and ill-founded while approaching this Court directly because the order referred to is no-where suggestive that petitioner was given premium to make an application for anticipatory bail directly to this Court.
Learned counsel for petitioner submitting argument with reference to exceptional circumstances maintained that since petitions for qaushment of FIR in the present case as well as other cases are pending, therefore, no exception can be taken to the direct approach of the petitioner for redressal of grievance. Though keeping in view the yardstick high-lighted in "Sh. Zahoor Ahmad v. The State"
(PLD 1974 Lahore 256) it can be said that action of the petitioner is justified but nevertheless pendency of writ petition of qaushment of FIR by itself does not suggest the exceptional circumstances which may permit the petitioner to approach this Court directly. It is to be noted that in case of "Sh. Zahoor Ahmad the said aspect was also taken into consideration and it was held that even if prima facie, any one of the consideration is attracted its peculiar circumstances might still not justify filing of writ petition in the High Court and in the absence of other justified circumstances, this fact by itself is not sufficient to over-rule the objection. Even otherwise yardstick for grant of anticipatory bail and qaushment of FIR; is entirely distinct and different. No compelling circumstances were high-lighted at the instance of petitioner to cover his case within out lines high- lighted. It would not be possible for the petitioner to canvass the argument regarding apprehension of arrest in case of approaching the Court of Sessions because the interim report under Section 173 of The Code of Criminal Procedure, 1898 has already been submitted before learned trial Court with the opinion of investigating agency that it appears to be a matter of civil nature and neither any attempt was made by police to apprehend the petitioner nor same was pleaded. It is to be noted that it is the case of petitioner that though cheque was issued at his instance in favour of Respondent No, 2 but the same was to be encashed upon fulfillment of certain conditions agreed upon between the adversaries as is evident from the agreement entered into.
With this background it is the case of petitioner that cheque issued was a conditional and further the presentation of cheque to the banker was against spirit of injunctive order issued by the Court of learned Senior Civil Judge, Gujranwala, made in the application under the provision of The Arbitration Act. The case of petitioner as such is not covered under any of the condition.
10.Perusal of the rule of law expounded in report titled "Rana Muhammad Arshad u. Muhammad Rafique and others (PLD 2009 Supreme Court 427) relied upon at the instance of Respondent No, 2 suggests that in absence of reasonable and 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. The reasons given at the instance of petitioner have been dealt with and by no stretch of imagination can be said to be reasonable and justifiable in order to approach this Court directly and as such the rule of law laid down in "Rana Muhammad Arshad v. Muhammad Rafique and others (PLD 2009 Supreme Court 427) and "Faqeer Muhammad and 2 others u. The State" (2010 YLR 457) is applicable to the facts of present case with full force. It is further to be noted that bail application according to Note 2, Rule 14 Chapter X of the High Court (Lahore) Rules and Orders, Volume III had to be first moved before and disposed of on merits by the Court of Sessions.
11.Growing tendency of submission of applications for anticipatory bail directly before this Court is to be controlled.
12. Viewed from whichever angle, the petitioner has failed to dorsing light reasonable, justifiable and exceptional circumstances endorsing his action directly approaching this Court to have the premium of anticipatory bail and as such while disposing the application for anticipatory bail, the petitioner is admitted to ad interim anticipatory bail protective in nature up till 16.6.2011 enabling him to approach the Court of first instance. Order granting ad-interim anticipatory bail shall cease to have effect on 16.6.2011 after Court hours.
13. Since the applications for anticipatory bail has been disposed of by this Court on legal premises, therefore, it is not permissible to deal with the arguments canvassed at the instance of adversaries on merits.