ADNAN-UL-KARIM MEMON, J. Applicant Muhammad Shaheryar has approached this court for a grant of pre-arrest bail in FIR No. 114 of 2023 registered under section 489-F, P.P.C. at Police Station Shahrah-e-Faisal Karachi.
2. The facts of the case are that the complainant lodged a report with Shahrah-e-Faisal Karachi against the applicant with the allegations that he invested money in an Estate Agency owned by the applicant on a loss and profit basis however, no profit was given to the complainant and on- demand the applicant issued two cheques of Rs.200,000/- each dated 13.7.2022 and 23.8.2022 and these cheques were presented in concerned Bank on 23.8.2022, which were dishonored, such report of the incident was given to Police on 1.2.2023.
3. Due to the direct approach by the applicant to this Court, the applicant was directed to satisfy.
4. To the aforesaid query, learned counsel for the applicant submitted that the applicant could approach this Court directly and it is not an absolute rule under the law that he at the first instance approach the trial Court in terms of the law laid down by the Supreme Court in the case of Raees Wazir Ahmad v. The State [2004 SCMR 1167]. She further submitted that the reason for approaching this Court directly is that police in connivance with the complainant had cordoned off the Sessions Court concerned and there was/is a direct threat to the life of the applicant at the hands of the complainant party who created atmosphere and attempted to create a hurdle for the applicant to enter in the premises of Sessions Court, as such he could not approach the trial Court.
However, the aforesaid assertion has been denied by the complainant who raised his voice of concern about entertaining the pre-arrest bail application of the applicant without approaching the trial Court and submitted that judicial propriety demands that the applicant apply for his pre- arrest bail before the relevant trial Court in the first instance. He emphasized that in the present case, no compelling circumstances have been pointed out by the applicant to bypass the Sessions Court. However, she prayed for the conversion of the instant bail application into protective bail enabling the applicant to surrender before the trial Court. At this stage, I reminded the learned counsel for the complainant that the power of the High Court and the Court of Session, under section 498, Cr.P.C., to grant pre-arrest bail is thus co-extensive and concurrent with that of the Sessions Court under Section 498, Cr.P.C., however, only propriety demands that the Court of the first instance should be approached first. He agrees with the aforesaid proposition, but insisted on the dismissal of the instant bail application under Section 498, Cr.P.C. Learned Deputy PG submitted that the applicant/accused has failed to establish any mala fide on the part of the complainant and police to book him in the present crime.
5. The aforesaid stance of the learned counsel for the complainant and Deputy PG has been refuted by the learned counsel for the applicants/accused inter-alia on the ground that this Court has concurrent and co-extensive jurisdiction with the Sessions Courts for the grant of pre-arrest bail. She emphasized that both the Courts have concurrent jurisdiction and while considering a grant of bail to an accused under the aforesaid section the merits of the case have to be considered though such observations may be tentative. She asserted that there are compelling reasons to approach this Court and now the applicant has approached this Court, therefore, judicial propriety demands that the instant bail application may be heard and decided on merits rather than converting the same into protective bail as portrayed by the complainant.
6. The accusation against the applicant is that he issued two cheques of Rs.200,000/- each dated 13.7.2022 and 23.8.2022 to the complainant and these cheques were presented in the concerned Bank on 23.8.2022 which were dishonored, such report of the incident was given to Police on 1.2.2023. Applicant being aggrieved by and dissatisfied with the inclusion of his name in the FIR directly approached this Court under Section 498-A, Cr. P.C. for grant of pre-arrest bail, which application was entertained by this Court vide order dated 6.6.2024.
7. On merits, learned counsel for the applicant argued that the applicant is innocent and has falsely been implicated in the instant case as well he has nothing to do with the alleged offense as portrayed by the complainant as the entire profit amount had already been received by the complainant. Learned counsel argued that the punishment under the same offense does not fall within the prohibitory clause of Section 497, Cr.P.C. thereby making it a matter in which grant of bail is a rule and refusal is an exception for reason that the mala fide of the complainant is apparent in the present case though he was well aware of the fact that applicant was not liable to pay the amount to him, however, he managed the story in connivance with the concerned SHO. In support of his contentions, she relied upon the case of Muhammad Kashif Iqbal v. The State (2022 SCMR 821) and Naeem Qadir Shaikh v. The State (2022 SCMR 2068) She prayed for allowing the bail application.
8. The learned counsel for the complainant has opposed the bail application inter alia on the ground that no extraordinary circumstances exist in favor of the applicant to approach this Court for his pre-arrestt bail, therefore, the propriety demands that the applicant should surrender before the trial Colin rather than this Court. In support of his contentions, learned counsel for the complainant has relied upon the cases of The State v. Zubair (2002 SCMR 177), Muhammad Riaz v.
The State (2002 SCMR 184), Imtiaz v. Azam Khan (2021 SCMR 111) and The State v. Zubair (PLD 1986 SC 173) and lastly, he prayed for dismissal of the bail of the applicant.
9. I have considered the arguments advanced by learned counsel for the applicant as well as learned APG assisted by learned counsel for the complainant and perused the record with their assistance.
10. Before touching upon the merits of the case, it would be appropriate to discuss the preliminary objection raised by the learned counsel for the complainant that the applicant has filed a direct bail application seeking his pre-arrest bail before this Court without exhausting the remedy of approaching the Court of first instance i.e. Sessions Court concerned. Primarily, it is not an absolute rule in terms of law laid down by the Supreme Court in the case of Raees Wazir Ahmad v. The State [2004 SCMR 1167]. In the present case, the applicant has pleaded that the reason for approaching this Court directly is that police in connivance with the complainant have cordoned off the Sessions Court concerned as such he could not approach the trial Court. Additionally, there is no denial to the fact that the jurisdiction of the Sessions Court and the High Court is concurrent.
Even otherwise, the applicant has not availed one remedy, which was available to him while agitating his grievance before this Court; there ore, he lost one opportunity to cause no prejudice to the complainant party. Besides the law on the subject is very clear that the Superior Court can entertain the application for pre-arrest bail and grant relief to the accused in appropriate cases where the accused could inter alia establish that he was prevented from approaching the lower Court concerned in the first instance as discussed in the preceding paragraphs.
11. Primarily, an accused normally can approach in the first instance the Court of Sessions for bail before arrest as propriety so demands but depending on the compelling circumstances, an accused can approach the High Court directly by invoking its concurrent jurisdiction. In the present case, the applicant has also pleaded that he could not approach the trial Court due to resistance created by the complainant in connivance with the police and they had grave apprehension of being killed and/or kidnapped if he entered into the premises of the learned Sessions Court and keeping in view the aforesaid factum he approached this Court for protection. Under the aforesaid circumstances, the High Court is empowered to entertain the bail application of the aggrieved person under Section 498, Cr.P.C. without waiting for the decision of the learned Sessions Court if approached by the accused and in the present peculiar facts and circumstances of the case, this Court vide order dated 6.6.2024 entertained the application and granted him interim bail. So far as the narration of the complainant it will open the floodgate if the direct bail before arrest application is entertained by this, Court. I am not convinced of the aforesaid proposition so put forward by the learned counsel for the complainant for the reason that if the accused is entitled to bail under the law on merit, consequences could not be taken into consideration while entertaining the bail plea of 'the accused if he has directly approached this Court under Section 498, Cr.P.C. On the aforesaid proposition, I am guided by the decisions of the Supreme Court in the cases of Abdul Majeed v. The State (2022 SCMR 676), Khair Muhammad and another v. The State through P.G Punjab and another 2021 SCMR 130, The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafia Ahmed Jilani v. The State 1995 PCr.LJ 785; Shamrez Khan v. The State 1999 PCr.LJ 74 and Meeran Bakhsh v. The State and another PLD 1989 SC 347.
12. Having dealt with the question of jurisdiction of this Court, the tentative assessment of the record reflects the following aspects of the case:
13. Primarily, considerations for pre-arrest bail are different from that of post-arrest bail. Pre-arrest bail is an extraordinary relief, whereas post-arrest bail is an ordinary relief. While seeking pre-arrest bail it is the duty of the accused to establish and prove mala fide on the part of the Investigating Agency or the complainant. Bail before arrest is meant to protect innocent citizens who have been involved in heinous offenses with mala fide and ulterior motives. The aforesaid principles are being faithfully adhered to date; therefore, the grant of pre-arrest nail essentially requires considerations of mala fide, an ulterior motive, or abuse of the process of law. However, it is well settled by now that it is not possible in every case to prove the mala fide but the same can be gathered from the facts and circumstances of the case. Even otherwise, if an accused person has a good case for post-arrest bail then merely at the wish of the complainant, he cannot be sent behind bars for a few days by dismissing his application for pre-arrest bail. Keeping in view the facts and circumstances narrated above, it has made it abundantly clear that while granting pre-arrest bail, the Court can consider the merits of the case in addition to the element of mala fides/ulterior motives which has to be adjudged in the light of law laid down by the Supreme Court in its various pronouncements. As a consequence, Courts of law are under the bounded duty to entertain a broader interpretation of the "law of bail" while interpreting material placed before it more liberally to arrive at a conclusion that is badly required due to the apparent downfall in the standard of investigation. On the aforesaid proposition, I am guided by the decision of the Supreme Com in the case of Khalil Ahmed Soomro v.The State (PLD 2047 SC 730), Likewise, in the case of Shahzada Qaiser Arfat alias Qaiser v. The State and another (PLD 2021 SC 708), the Supreme Court was pleased to reiterate the aforesaid view.
14. The epitome of the above discussion is that the applicant has succeeded in making the case for the confirmation of the pre-arrest bail, hence, this bail application is allowed and the ad-interim pre-arrest bail already granted to the applicant vide order dated 6.6.2024 is confirmed subject to his furnishing of further bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the Nazir of this Court within one week.
15. Needless to mention that any observations made in the above order are tentative and shall not influence the trial Court in any manner if the matter proceeds. However, it is made clear that findings recorded on the subject point i.e. direct entertaining the bail before arrest application before this Court shall not be treated as a precedent in all bail before arrest cases as the facts and circumstances of the present case are peculiar.