This is an application by one Abdul Hamid Khan Jatoi, who is a Member of the National Assembly, seeking bail before arrest in respect of a case registered 1by means of an F. I. R. Dated the 10th of September 1972, at the Bakrani Police Station in the District of Larkana. The F. I. R. Is for an offence under section 364, P. P. C. That is, kidnapping with the intention of causing the death of the person kidnapped. Subsequently as learned counsel for the applicant informed me at the commence-- ment of the hearing today he, that is, counsel and his client were informed that the person in respect of whom the F. I. R. Was made has in fact been murdered. On my enquiry it transpired that the applicant and his counsel had this information as long as 15 days ago. Counsel, however, claims that the information was indefinite and even today he is by no means certain that the person in fact bad been murdered. It is clear, however, that whatever the worth of this information it was known to counsel 15 days earlier, I should have, therefore, thought it at least proper that this should have been mentioned to me yesterday when I passed orders for interim bail. It might or might not have influenced me in the exercise of discretion but it certainly was a matter which could have been taken into consideration.
2. This application was made as an urgent motion yesterday and it was claimed before me that although the appellant was by no means desirous of evading surrender to this Court the police had made it impossible for him to do so and that, therefore, I should either dispense with his attendance yesterday or authorise an officer of this Court to go to his residence and obtain and affidavit. I declined to follow the latter course but for reason which will presently appear, I granted interim bail up to this morning and directed that the appellant should furnish security yesterday and his own personal bond this morning in Court. Security was furnished and the applicant is present before me today.
3. I have now heard the matter at some length and the principal facts upon which reliance is placed by the petitioner are that the present, according to him, is the last of series of acts intended to harass him. Although I mean to give no findings on these matters and intend to deal with these matters as lightly as the circumstances of the case will permit me to do, it is necessary to set out what according to the applicant are the facts which constitute these series.
4. The applicant was first arrested in May for an offence under sections 363 and 366 of the Pakistan Penal Code, the kidnapped person being one Hidayat Khatoon. He was ordered to be released on bail by the Sessions Judge but immediately thereafter he was re-arrested on a charge Linder sections 363 and 506 of the P. P. C. In this matter also he was ordered to be released by the Sessions Judge but again he was produced before a Sub-Divisional Magistrate at Larkana where proceedings under section 107/117 were launched. It seems that sureties were accepted but counsel on neither side are certain whether he was in fact released. Be that as it may, he was then detained under the provisions of Maintenance of Public Order Ordinance and this order of detention was challenged by means of a petition under Article 201 of the Constitution in this Court.
This petition was allowed and the learned counsel for the petitioner relies upon that fact also.
5. Learned counsel also sought to connect another case in which the present petitioner was himself the petitioner and which sought to challenge the validity of the detention of one Hadi Bux Jatoi but that petition was dismissed by a Bench of this Court of which I was a member and counsel frankly concedes that there was nothing in that petition upon which he could properly rely.
6. The learned Advocate-General has urged before me a. Number of arguments to pursuade me that bail ought not be granted in the present case. In the first place he relies upon a decision of the Supreme Court of Pakistan in the case of Nisar Ahmed v. State (PLD1971SC171) where their Lordships of the Supreme Court were pleased to observe at page 177:--- "Of late, we have witnessed a growing tendency of applica--tions for bail and anticipatory bail being brought in the High Courts and the Supreme Court almost as a matter of routine. As repeatedly laid down by this Court, grant or refusal of bail in non-bailable cases is a matter of discretion with the primary Court, which is inquiring into or trying the case. This discretion has to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberties of the people who are accused of criminal offences. For offences punishable with death or transportation, this discretion is subject to the limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to ascertain whether reasonable ground exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left unrebutted, may lead to the inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicious nor with tested and proved evidence, which the law requires for a person's conviction for an offence."
With these observations of the Supreme Court I am in entire and respectful agreement and would in any case be bound by their Lordships' observations. But I am unable to read this judgment as prohibiting the High Court from granting bail in a suitable case. It is also to be observed that the case which their Lordships were dealing with was one in which the accused persons had already been committed to the Court of Session. That fact would by itself make the probability of a reasonable ground against the accused stronger than in the present case.
7. It was then argued that this Court ought not to entertain applications of the present kind without the Sessions Judge having been first moved and reliance was placed upon certain judgments of my own in which I have held that view. I still adhere to that law but I am unable to see that it applies in the present case. This Court has always jurisdiction to entertain matters of this kind but will refrain from doing so unless there are special reasons made out justifying an application without approaching first the Court of Session. It was alleged in the present case that not only was the petitioner unable to reach the Court of Sessions Judge, Larkana without being apprehended but was unable even to enter into the Compound of this Court without this being effected. Normally that would not matter, if a person is arrested in the ordinary course before he could get bail before arrest then the law will of course follow its own course when the man would be produced before the Magistrate and, if it was necessary, recourse could be had to the Court of Session and to this Court. No doubt in a suitable case the higher Courts would be pursuaded to interfere but they would normally refrain from interfering with the ordinary and orderly administration of criminal justice or the due process of the Criminal Procedure law.
8. In the present case, however, I deeply regret to say that there is substance in this complaint of the petitioner. Every entrance of this Court was guarded by the police yesterday without my having made any request to the Government for any protection. I cannot, therefore, but think it reasonable to assume that the petitioner might well have thought that this was intended to prevent his entrance; whether in fact it was so intended or not I do not mean to decide.
9. The learned Advocate-General then contends that this is too premature a stage for me to consider the question of bail and he points out that it would be pre-judging a ease to do so at the present juncture. No doubt the argument is valid and would be conclusive in the large majority of cases but although a Court, and particularly the High Court, would be extremely careful to avoid decision on any matters which properly pertain to the domain of a trial Court it cannot shirk its duty for the purpose of exercising the jurisdiction that it undoubtedly possessed and which has been invoked in the present case. Learned Advocate General at the Bar tells me that the matter is under investigation and that they have now two confessions of other accused persons who apparently were absconding until the 15th and the 16th of September, respectively but who on the dates on which they were arrested have made a judicial confession. One of them has also made an extra judicial confession. Added to this, is what the learned Advocate-General described as the extremely strong motive and, therefore, extremely strong evidence of the fact that the deceased was a witness in the case relating to Hidayat Khatoon which I have mentioned and it is said that the deceased even then expressed his fear that he would be murdered. So far as the first information report in this case is concerned it does indeed say that 'He" (meaning Haji Miral who is deceased), has entered into a conspiracy between "these accused persons" meaning the persons then accused which include the applicants. Since reliance is placed upon this I am forced to say that on its plain reading it does not indicate any direct evidence of actual incident from which an inference can be drawn but refers to the first informant's own inferences or suspicion.
10, As I have said before I am reluctant to enter into too close an examination of this evidence if it can be so called as I. Do not wish to prejudice the case of either party when this case comes up for trial. In the very usage of the judgment on which the learned Advocate-General relied their Lordships of the Supreme Court have stated the criterion upon which the material is to be judged at the, stage, and I am referring to the latter part of the passage which begins with the words "in order to ascertain". I am unable to say that there is such material in the case at the present moment. I have, therefore, come to the conclusion that bail should be confirmed in this case and, therefore, direct that it should be confirmed on condition of the applicant furnishing a surety in the sum of Rs. 1,00,000 and person and bond in the like amount.
11. Counsel for the applicant points out to me that a sum of Rs. 25,000 was furnished in cash yesterday and it may need a day or two before further security can be furnished. I allow time to the petitioner to give, fresh bail up to the 29th by which date he will give such surety as I have stated to the satisfaction of the Nazir of this Court. In the meantime he will be allowed to continue on the same bail on which he is just now.
12. It is finally argued before me that there is danger in this case of the applicant tampering with the evidence or absconding as he is stated to be an influential person. As to absconding I do not think the danger is very great; the applicant is a Member of the National Assembly and I would not presume this but of course such a possibility can never be ruled out. Accordingly, if at any stage of the case hereafter the prosecution thinks that because of the evidence they have collected or the danger of absconding or the danger of tampering or any other relevant fact it is advisable and proper for them to move for the cancellation of bail they will move this Court for that purpose.