1. ' These three bail applications are being disposed of by this common order as the same are outcome of Crime No,90 of 1999 registered with Police Station 'A' Section Khairpur.
2. ' The facts of the prosecution case are that on 10-5-1999 Manzoor Hussain Phul Inspector/S.H.O.
3. Police Station 'A' Section Khairpur registered F.I.R. For offences punishable under sections 188 and 341, P.P.C. And 128 Railways Act, 1890 alleging therein that after the announcement of sentence awarded by Ehtesab Bench of Lahore High Court to People Party Leaders Benazir Bhutto and Asif Ali Zardari, the P.P.P. Leader Manzoor Hussain Wasan (applicant in Criminal B.A. No,255 of 1999) gave a call to the party workers for taking out procession in Khairpur. On coming to know about this complainant-Inspector along with A.S.I. Abdul Munaim, H.C. Pahlwan Khan and other staff left the police station duly armed with service weapons. Other police personnel was also detained at various places in the city. It .Is alleged that complainant party headed by Haji Qamar Raza Jiskani D.S.P. Khairpur reached Therhi Railway crossing on National Highway at 6-00 p.m. At that time Manzoor Hussain Wasan, Mubeen Phulpoto, Sajid Ali Wasan, Amir Hussain Lakho, S. Shafquat Hussain Shah, Mian Muhammad Usma n and Manzoor Brohi and about 1500 persons reached the place in cars, buses, wagons, Datsun, Mazda and Suzuki Pickups. They blocked the railway crossing on the National Highway and delivered political speeches. According to the complainant, section 144, Cr.P.C. Was imposed by District Magistrate Khairpur prohibiting procession or gathering of 5 or more persons. As such the accused are alleged to have committed offences punishable under sections 188 and 341, P.P.C. And 128 Railways Act.
4. ' After registration of the case police took up the investigation and produced the applicants before a Magistrate for obtaining remand wherefrom they were sent to judicial custody. By now the case stands challaned in the Court.
5. ' These bail applications were filed in this Court directly for the reason that presently Court of Special Judge S.T.A. Khairpur is lying vacant. Crl. B.A. No,255 of 1999 came up before the Court on 17-5-1999 when notice was issued to A.A.-G. For 19-5-1999 on which date Mr. Sher Muhammad Shar appeared and sought time so that he may obtain police papers and also verify whether Court of learned Special Judge S.T.A. Khairpur is lying vacant and the matter was adjourned for 20-5-1999.
6. In the meantime learned A.A.-G. Confirmed the position of the Trial Court and after hearing the learned counsel for parties by a short order Cr.B.A. N o .255 of 1999 was allowed.
7. ' Cr.B.A. No,274 of 1999 was filed on 20-5-1999 and was adjourned for 21-5-1999 after issuance of notice to A.A.-G. On this date Cr.B.A. No,276 of 1999 was filed which was taken up for hearing after learned A.A.-G. Waived notice. After hearing learned counsel for the parties these two applications were also allowed by a short order, dated 21-5-1999.
8. ' Learned counsel for the accused/applicants contended that since Trial Court is lying vacant, there is no legal impediment in approaching this Court directly for relief. In support of this proposition, Mr. S. Mushtaq Hussain Shah has relied upon the case Sh. Zahoor Ahmed v. State (PLD 1974 Lahore 256).
9. ' We have heard learned counsel appearing for the applicants who have contended that offence under section 188, P.P.C., is punishable up to six months imprisonment, offence under section 341, P.P.C., carries the punishment of one- month only while section 128 Railways Act provides punishment of two years only. They urge that the applicants are entitled to bail as their case does not come within the prohibitory clause of section 497, Cr.P.C., and the embargo contained in section 5-A(8) of the Act is also not applicable to their case. It is also urged that applicant Manzoor Hussain Wasan is Divisional President of Pakistan People Party Sukkur Division and sitting M.P.A.
10. Sindh. The other applicants are also falsely involved as a measure of political victimisation.
11. ' Mr. Sher Muhammad Shar learned A.A.-G. After going through the police papers pointed out that charge-sheet in the case has been filed and accused/applicants are no more required for the purpose of investigation. As stated earlier, learned A.A.-G. Has confirmed that the Court of Special Judge S.T.A. Is lying vacant as after the transfer of the Presiding Judge, the new incumbent has not been posted so far. Accordingly learned A.A.-G. Has raised no objection to the grant of bail application.
12. ' We have gone through the material placed with the case. Admittedly section 188, P.P.C., is punishable with imprisonment of six months while punishment provided for section 341, P.P.C., is one month. It is the violation of section 128 Railways Act that the case has been challaned before the Special Court S.T.A., Khairpur but this section also is punishable with imprisonment for a term which may extend to two years.
13. ' As to the filing of bail applications directly before this Court, the authority, PLD 1974 Lahore 256 is fully applicable to the facts of tree present case. In that case after analysing the point of concurrent jurisdiction of this Court, a few exceptions have been outlined when an accused can approach directly without having recourse before the subordinate Court. In this regard it would be advantageous to quote the relevant passage: "In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether the case is so exceptional as to warrant direct move, by petition, in the High Court.. All of these factors cannot be enumerated nor can they be laid down with any exact specifications. But it will not be out of place to visualise some broad outlines in this behalf. For example. ' where the Presiding Officer of the lower Court is not available and his substitute it is either difficult to locate or even if lose table is unable to give substantial relief in a matter; as some times, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code; ' 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 or co- ordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner."
14. ' In view of the absence of the Judge of Special Court S.T.A., we hold that the applicants have properly filed the applications directly to this Court. Moreover, learned A.A.-G. Was unable to inform the Court when the presiding Judge will be posted in the Trial Court.
15. ' Learned counsel for the applicants had also urged that the allegations in the F.I.R. Do not fulfil the essential ingredients of section 128 of the Railways Act. All that is alleged is that a mob of 1500 persons blocked the National Highway and Railway crossing and the applicants were among those persons. As such there are general allegations without specific role played by the applicants.
16. Learned A.A.-G. Has also raised no objection to be grant of bail applications.
17. ' As a result of the above discussion and keeping in view the facts and circumstances of the case and the case-law cited at the Bar, we are inclined to hold that the applicants are entitled to grant of bail. We, therefore, allow the applications. The applicants may be released on furnishing solvent surety in the sum of Rs,50,000 (fifty thousand) and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
18. ' Above are the reasons for our short orders passed in identical terms.