ABDULLAH BALOCH, J.---This order disposes of Criminal Bail Before Arrest Application No,566 of 2017, whereby the applicant Abdul Nafay son of Haji Sazai, is seeking bail before arrest in FIR No,53 of 2017 was lodged with Levies Station, Chaman under section 302/34, P.P.C.
2. Facts of the case are that the complainant Muhammad Azeem lodged above FIR at Levies Station, Chaman, stating therein that on 18th May 2017, he along with the accused party are residents of same village i,e, Sanzala Karez. On 15th May 2017 at about 6.15 p.m. his brother Zain-ud- Din was going to purchase household articles from the nearby General Store, when the accused namely Jahanzaib started firing upon his brother, due to which he received bullet injuries and fell down. The crime was witnessed by Rehmatullah and Javed and they also took him to hospital, but in the way the injured succumbed to the injuries and died.
3. It appears from the record that prior to registration of instant case, the accused party had also lodged FIR No,49 of 2015 at the same Levies Station, under Sections 337-ADF, 337-H2, 147, 148, 149, P.P.C., against the complainant party.
4. The accused/applicant appeared before this Court along with his counsel for grant of ad-interim pre-arrest bail, hence ad-interim pre-arrest bail was granted to him by this Court, vide order dated 26th December 2017.
5. Learned counsel for the accused-applicant contended that he is innocent and has not committed any offence whatsoever alleged by the prosecution in the FIR rather it was the complainant party comprising of 20-accused persons, who first launched attack upon the accused party, due to which four persons received serious injuries and accordingly FIR No,49/2015 was lodged against them, but just to pressurize and to minimize the gravity of FIR already registered against the complainant party, succeeded in lodging the present FIR against the accused/applicant and others, hence a case of further inquiry has been made out entitling the accused-applicants for confirmation of his ad-interim bail; that the accused nominated in FIR No,49/2015 have been granted bail, thus as a rule of consistency the accused/applicant is entitled for confirmation of bail in the case in hand, which is the result of a counterblast; that the investigation in the matter has been completed and the accused-applicant is no more required for the purpose of interrogation or probe.
6. Conversely, the learned State Counsel assisted by the leafhed counsel for the complainant vehemently opposed the arguments so advanced by the counsel for the applicant and contends that the alleged offense is non-bailable carrying punishment for death or life imprisonment and the accused was nominated in the promptly lodged FIR with specific role of firing, thus he is not entitled for confirmation of his ad-interim bail. It has further been contended that the applicant has directly approached this Court incompetently for grant of bail rather at the first instance he ought to have approached the competent Court of law having jurisdiction in the matter, thus on this ground too he is not entitled for grant of bail.
7. I have heard the learned counsel for the parties and with their able assistance gone through the record. Before dilating upon the material available on record, it would be better to first discus the objection taken by the learned State Counsel as well as by the counsel for the complainant that the applicant has directly approached this Court instead of approaching the trial Court. Suffice to observe here that the objection so taken is without any substance, because in exceptional circumstances, where the life of a person is under threat to directly approach the trial Court, then under such circumstances he can directly approach this Court. Admittedly, tribal enmity exists between both the parties and FIRs against both the parties have already been lodged, thus a genuine reason exists in favour of the accused to directly approach this Court. Reliance is placed on case of Rais Wazir Ahmed v. The State 2004 SCM R 1167, wherein it was held that: "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 Jamali v. The State 1997 PC.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 it of on merits."
8. It has been observed that cross-cases were registered by both the parties against each other and the persons from both the sides received injuries caused due to firing or inflicting blows of dagger/ knife etc., while in the case the deceased Zain-ud-Din has been died allegedly by the firing of one Jehanzaib, while perusal of statements under 161, Cr.P.C. of prosecution witnesses attributed alleged aerial firing to applicant and co-accused Abdul Wasay by means of pistols.
Besides, both the occurrences had taken place within the shortest span of time i,e, 45-minutes, hence it is yet to be determined that which party was the aggressor and which party is the victim or defend themselves from aggression, this fact can only be ascertained during trial after recording of evidence, till then it is a case of further inquiry. Besides, as per counsel for applicant the accused nominated in the cross FIR No,49/2015 have already been granted bail and learned counsel for the complainant conceded the same, thus on the rule of consistency too the accused/applicant is also entitled for grant of bail. Merely an offence of being heinous in nature or falling within the ambit of prohibitory clause of Section 497(1) D Cr.P.C. is not enough to withhold the concession of bail. Reliance is placed on the case of Muhammad Yaqoob v. The State 2012 M LD 355 in the following terms: "...Apart from this a person cannot be refuted the premium of bail only on the ground that he is nominated in the crime report. Mere mentioning the name of any person in a murder case does not disentitle him for grant of pre-arrest bail. The Court while deciding the petition can examine the accusations, the report of the investigating agency and even can touch upon the merits of the case. Reference in this regard can be made to the cases of Meeran Bux v. The State and another PLD 1989 SC 347 and Muhammad Riaz Minhas v. The State (1990 PCr.LJ 1353 Lahore)
7. In the instant case nevertheless there is a direct allegation of causing firearm injury on the non- vital part of injured prosecution witness, however, possibility cannot be ruled out that the prosecution has thrown a wider net and involved as many male members of the family. Petitioner being behnoi of the main accused was also saddled of causing injury but the same was found false during the course of investigation. The petitioner having not been assigned any overt act, does not constitute an offence and that's too being the neighbour, therefore, in opinion of this Court it is a fit case; wherein the Court should come for the rescue of innocent person. Needless to mention that investigation of the case is already complete and nothing is to be recovered from the petitioner.
8. For the foregoing reasons, this Court is of the firm opinion that sufficient grounds exist persuading this Court to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 29-8-2011 subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial court."
9. Keeping in view on tentative assessment of record, the counsel for the applicant-accused has successfully made out a case of further inquiry in favour of the accused/applicant, therefore, I am inclined to accept the instant application and to confirm the ad interim pre-arrest bail granted to the accused/applicant by this Court, vide order dated 26th December, 2017. The accused/applicant is directed to fully cooperate with the Investigating Agency for the purpose of investigation and appear before the trial Court for proceedings.
The observations made hereinabove are tentative in nature and the same shall not influence the merits of the case.