KAMAL MANSUR ALAM, J. - The applicant in this case who was D.I.G. Karachi at the relevant time seeks bail before arrest in FIR No. 443/96 registered at Clifton Police Station on 9.11.1996 as a result of direction given by a Division Bench of this Court in C.P. No. D-l720/96. The applicant was granted interim pre-arrest bail by me in this case.
2. The allegation in the FIR is that on 20.9.1996 a police party consisting of several officers and other ranks numbering about 80-100 stopped Mir Murtaza Bhutto, Chairman, Pakistan Peoples Party (SB) and his companions travelling in four vehicles near his house at 70-Clifton. Karachi, at about 8.-35 p.m. In the evening. As soon as Mir Murtaza Bhutto lowered the window glass of his vehicle the police personnel who had already taken positions in the area started firing on Mir Murtaza Bhutto's party which resulted in death of eight persons and injuries to serial others. Applicant is not shown as one of those present at the place of incident but his name is mentioned in the FIR as one of those who conspired to eliminate Mir Murtaza Bhutto alongwith certain others in the Federal Government and the Provincial Government of Sindh has also those named in the FIR.
3. The first point that needs considerations in the matter is as to whether in this. Case of concurrent jurisdiction it was not necessary for the applicant to have moved the Sessions Court first before approaching this Court for pre-arrest bail. It is well-settled by string of decisions of superior Courts dn the point that in matters of pre-arrest bail where the lower Court has concurrent jurisdiction with the High Court, ordinarily the accused should not be allowed to by-pass the Sessions Court and approach the High Court directly. The general rule is that where two courts enjoyed concurrent jurisdiction, the Court comparatively lower in the hierarchy should be moved first and only under compelling and exceptional circumstances an accused may be allowed to move the High Court without first approaching the Sessions Court. Reference may be made to the cases of Zulfiqar and others v. The State and 10 others (1991 SCMR 322) and Sh. Zahoor Ahmad v. The State (PLD 1974 Lah.
256).
4. Mr. K.M.A. Samdani, the learned counsel for the applicant submitted that as the complainant had connections with persons holding high offices and the incident had been widely reported and commented upon in the newspapers, the applicant genuinely apprehends that in the charged political atmosphere presently prevailing in the city the Sessions Court may be embarrassed and unable to give relief to the applicant, lt was further submitted that the third FIR having been registered on the direction of this Court, the lower Court may also fed restrained to take independent view of the matter. 1h these circumstances, it was argued, that this was a fit case where this Court should exercise its concurrent jurisdiction without insisting on the applicant first moving the Sessions Court.
5. The argument is not without force. There is little doubt that the complainant, if not directly at lest incorrectly, has connection with important personalities of the country it cannot be denied that the incident received were publicity in the media and there would hardly be a political leader, worth the name, who has not commented upon the incident giving it political stinge. In these circumstances, it would not be unreasonable to treat this an exceptional case for the exercise of the concurrent jurisdiction of this Court, Reference in this regard may also be made to the case of Wali Muhammad v. The State (1973 P.Cr.L.J. 873) where it has been held that, "The first question that agitated my mind was, whether in a case of a concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind ' that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo, however, relied upon a Full Bench case reported in Shah Zillur Rehman's Mutwali v. The State which was a case of concurrent jurisdiction on the revisional side. It was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of oh its own merits. There are many other cases to the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction."
This would be another reasons for not insisting on first moving the Sessions Court in the present case which has been heard by me on merits too.
6. On merits, the learned counsel for the applicant seeks pre-arrest bail for the applicant on plea that admittedly the applicant was not present at place of incident; that he has not been assigned any overt act in the FIR and all that has been mentioned against him in the FIR is that he wanted to arrest Mir Murtaza Bhutto. Reference in this regard was made to para 14 of the Judgment in the aforesaid C.P.D.-1720/96 to emphasize that the learned Judges comprising the Division Bench had not permitted the inclusion of the name of the applicant in the FIR as would appear from the following passage in that para: "However, some other police officers have been named as suspects but no definite role has been attributed to them by the petitioners. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said police officers are concerned."
It was argued that-the inclusion of t\c name of the applicant in the FIR was with ulterior motive and mala fide and for the reason that the applicant had ordered the arrest of one Ali Muhammad Sonara, a very close associate for Mir Murtaza Bhutto and an activist of his party, and also as the applicant had directed registration of FIR against Mir Murtaza Bhutto and his guards for their raids on CIA Centres on 17.9.1996. The submission was that the applicant had nothing to do with the incident and the purpose of the operation was only to arrest some of the persons accompanying the late Mir Murtaza Bhutto. It was submitted, that the fact that the applicant was not involved in the crime is apparent from the interim challan submitted in the Sessions Court Karachi (South) wherein the name of the applicant does not find mention, as, obviously no incriminating evidence has been found against the applicant as a result of investigation.
7. Mr. M.L. Shahani, the learned Advocate General, Sindh, and Mr. I.A. Hashmi, the learned counsel appearing for the Complainant, Noor Muhammad, vehemently opposed the application. On the factual plane, they contended that it was a case of pre-planned murder of Mir Murtaza Bhutto in consequence of a conspiracy hatched by some important personalities in collusion with the police officers named in the FIR and this whs apparent from the facts, that while 8 persons were killed and several injured on the side of Mir Murtaza Bhutto, only two police officers received minor injuries which could not have been the case in the real encounter, that the injury sustained by SHO Haw Nawaz Sial was considered to be self-suffered by one of the medical hoards constituted by the Provincial Government to examine him and that Haw Nawaz Sial was murdered in mysterious circumstances just a few days after Medical Board's findings about his injury, FIR No. 279 of 1996 is said to have been registered in the Garden Police Station about the murder of Sial. It was contended that as the DIG Karachi the applicant was overall Incharge of Karachi Police and it is inconceivable that incident of such magnitude could occur without his participation in the planning. In the above circumstances, it was submitted that the applicant had no case or grant of bail less pre-arrest bail.
8. Main thrust of their argument, however, was that the rule for the grant of bail before arrest was quite different from the governing grant of bail after arrest. Presence of ulterior motive, particularly on the part of the police, to harass and humiliate by means of unjustified arrest, is one of the conditions for the grant of pre-arrest bail. In the instant case it was submitted that none of the conditions required for the grant of pre-arrest bail existed.
There is no doubt that the conditions required for the grant of pre-arrest bail are materially different from those for bail for arrest. It has been observed in the case of Sarwar Sultan v. The State and another (PLD 1994 S.C. 133) that.
"From legal angle, it can be said that there is material difference" between bail after arrest as contemplated under Section 497 Cr.P.C, and bail before arrest under Section 498 Cr.P.C." and that , "Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime."
9. The question of grant of anticipatory bail was examined in the ease of Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256) and after reviewing the precedent law on the point the learned Judge laid down the conditions considered necessary for the grant of pre-arrest bail. The relevant portion of the judgment is as follows:
10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498 Cr.P.C., are-
(a) that there should be a genuine provided apprehension of imminent arrest with the effect of virtual restraint an the petitioners;
(b) that the petitioner should physically surrender the Court;
(c) that on account of ulterior motives, particularly on the part of the police, there should be, apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest;
(d) that it would be otherwise fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C, would have to be kept in mind;
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C."
In the case of Murad 'Khan v. Fazal-e-Suhhan and another (PLD 1983 S.C. 82) the aforesaid five conditions for the grant of pre-arrest bail noted in Sh. Zahoor's case were approved. It has been observed that, ".... In para 10 of the judgment in the case of Sh. Zahoor Ahmad, five conditions were noted as deducible from the precedent law. One of the conditions was that "on account of ulterior motives particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest."
Reference may also be made to following observations in the case of Muhammad Parwaz v. Badi- uz-Zaman and others (1985 P.Cr.L.J. 3007); "7. Without dilating upon the merits
10. Having thus examined the case law, I now turn to the merits of the applicant's application for pre-arrest bail. With regard to applicant's counsel's contention that the learned Judges had not granted permission for the registration of FIR against the applicant, suffice to say that there is no such specific direction in the judgment. Since the name of the applicant transpires in the FIR his case too will have to be dealt with under the rules applicable to anticipatory bail. It is true that the applicant is not shown in the FIR s having remained present at the place of incident but there can be no denial that as the DIG and head of the Karachi Police he cannot escape the responsibility for police actions. The contention that his name was included in the FIR as he had directed the arrest of Ali Sonara and registration of FIR against the late Mir Murtaza Bhutto is rather far fetched.
Ordinarily, such directions do not come in the knowledge of general public and there is nothing to show that the complainant had any knowledge about this. In my view, therefore, there is no reliable material available to suggest ulterior motive on the part of the police or the complainant.
11. There seems no dispute that as a result of police firing 8 persons including Mir Murtaza Bhutto and Ashique Jatoi were killed and several others injured. The controversy about Haw Nawaz Sial's injury being self- suffered and his subsequent death are matters which te cannot be overlooked.
The fact that the applicant's name has not been mentioned in the Interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission of applicant's name in the interim challan would perhaps suggest that there is also no 'genuine proved apprehension of imminent arrest's of the applicant.
On the facts of this case, there appears no reasonable ground to suspect that the naming of the applicant in the FIR was mala fide or with ulterior motive.
12. For the forgoing reasons. I am of the view that this is not a fit case for the grant of pre-arrest bail to the applicant, as such, his application for pre-arrest bail is rejected. The earlier ing interim pre- arrest bail to the applicant is recalled.