AMANULLAH KHAN YASINZAI, J-.~ This petition for anticipatory bail was dismissed vide short order dated 11-6-1998, for detailed reasons to be recorded which are mentioned hereinbelow.
2. The relevant facts are that the Director Food Balochistan lodged a report with the Anti-Corruption Establishment on 12-12-1997, under sections 409, 467. 468, 471, 477, 477-A, 420, 109, PPC read with section 5(2) Act, II of 1947, alleging therein that a special audit team constituted by Government of Balochistan Food, Fisheries and Coastal Developments, Department had pointed out shortage of wheat during the period of 1994-95, 1996-97. It is further alleged that after examining record of dispatches from Karachi, Punjab and various other centres to PR centers at Balochistan about 156,042 bags of wheat were not delivered by the contractor and his allied firms and thus causing a loss of Rs. 147,101,479/, to. The exchequer. On this report, investigation of the case was started by the Anti- Corruption Establishment.
3. The petitioner was nominated in the FIR, apprehending his arrest he got a protective bail order from High Court of Sindh at Hyderabad Circuit on 2-6- 1998. The relevant portion of the said order is reproduced as below :- Keeping all factor in view I am inclined to grant protective pre-arrest bail to the applicant so as to enable him to approach the trial Court i.e. Court of Special Judge Anti-Corruption, Quetta/High Court of Balochistan. Accordingly the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.300,000/- (Rupees three lacs) with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court. This order shall remain operative for a period of ten (10) days from today and shall cease to have effect on the midnight of June, 12, 1998 or till such time that the applicant appears before a Court in Quetta, which ever earlier. The above order is made without prejudice to the merits of the case which would be considered by the appropriate Court.
4. The petitioner has find this petition for pre-arrest bail before this Court. I have heard Mr. Muhammad Riaz Ahmad, Advocate for the petitioner and Mr. Malik Sikandar, Advocate General for State.
5. The learned A.G. At the very out set opposed this petition inter alia on the following grounds:-
(i) That without approaching the Sessions Court petition find before this Court is not maintainable.
(ii) The petitioner remained a fugitive from law for the last about 6 months, thus not entitled to the discretionary relief of this Court.
(iii) The mala fides of the police have not been spelled out which is a prerequisite for grant of anticipatory bail.
6. Mr. Muhammad Riaz Ahmad, learned counsel for the petitioner contended that jurisdiction of the High Court and Sessions Court in respect to grant of bal are concurrent, thus without approaching the Sessions Court would not make any difference and moreover, there are no hard and fast rules for not moving the lower Court first and further contended that the petitioner was never a fugitive, he has been co-operating with the Investigating Officer and with Food Department and lastly stated that the arrest of the petitioner is based on mala fides which entitles the petitioner for grant of pre-arrest bail.
7. Mr. Malik Sikandar, learned Advocate General strenuously opposed the filing of the anticipatory bail application before High Court, instead of moving the Sessions Court. The learned A.G.
Contended that it has become matter of course with the accused persons to file pre-arrest bail petitions, directly in the High Court, this practice not only burdens the High Court but is also against the accepted principles, that .When two Courts, have concurrent jurisdiction the subordinate Court should be moved in the first instance. The learned A.G. Contended that High Court has entertained pre bail petitions directly but under extraordinary, exceptional and compelling circumstances which are lacking in the case in hand, thus the petition is liable to be dismissed on this score.
8. The question to be determined is whether in case of concurrent jurisdiction, the petitioner should have moved the Sessions Court first before approaching this Court for pre-arrest bail. It may be mentioned-here that there are a chain of decisions by superior Courts that in case of pre-arrest bail where the lower Courts have concurrent jurisdiction with the High Court, ordinarily the Sessions Court should be moved first and accused persons should not be encouraged to bypass the Sessions Court. It is a settled principle of law that when two Courts enjoyed concurrent jurisdiction the lower Court should be moved first and only tinder extraordinary exceptional and compelling circumstances the accused may be allowed to move the High Court without approaching the Sessions Court. The above question was examined in the case, Shaikh Zahoor Ahmad v. The State, PLD, 1974. Lahore, 256 and an another case, The State v. Malik Mukhtar Ahmad Awan, 1991 SCMR. In the former case it was held as below:- "After carefully considering the legal objection raised by the learned Assistant Advocate-General and going through the case-law on this point and taking note of the recent trend followed by this Court, I am . Of the view that a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circumstances, in which petitions might directly be entertained in the High Court, would depend upon several factors which might be of general type or those relating to a particular case. The general factors might, amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might further include disturbance of lawful authority of temporary failure thereof.
These general considerations from their very nature, it is clear would be relevant and material only very rarely. In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether it (case) is so exceptional as to warrant to be enumerated nor can they be laid down with any exact specification. But it will not be out of place to visualise some broad outlines in this behalf, for example:-
(a) where the High Court has earlier dealt with any matter which has direct relevancy to the subject-matter of the petition (for bail, revision) etc.) find in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction;
(b) where the Presiding Officer of the lower Court is not available and his substitute it is either difficult to locate or even if locatable is unable to give substantial relief in matter; as sometimes, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code;
(c) 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 of co- ordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner;
(d) where the petitioner is physically incapacitated to go to the Court and seek redress; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly;
(e) if there is serious and genuine apprehension of political victimisation at any level and the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved directly instead of an approach to the lower Court;
(f) where the case is such that it combines several questions in some of which the High. Court and the lower Court have concurrent jurisdiction but in others, the lower Courts have no jurisdiction e.g., if the matter requires exercise of jurisdiction under any specific provisions of Criminal Procedure Code as also under the inherent power of the High Court under section 561-A the matter may directly be moved in the High Court;
(g) where cases are spread over several districts and/or there is dispute or doubt about jurisdiction.
9. In the latter c se the following observations were made by Honourable Supreme Court as under:- It is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Sessions for pre-arrest bail before approaching the High Court.
10. In the case in hand, the arguments of Malik Sikandar, learned A.G. Have force. The counsel for the petitioner has failed to point out any exceptional circumstances, whereby the petitioner to be allowed to by-pass the rial Court and approach this, court for grant of anticipatory bail. It may be stated that before approaching this Court for grant of pre-arrest bail the petitioner obtained protective bail from Sindh High Court Hayderabad Circuit, wherein bail was granted to the petitioner to enable him to approach the trial Court. After obtaining protective bail from Sindh High Court, the petitioner was not virtually restrained and there was nothing in his way to move the Sessions Court for granting anticipatory bail. No doubt the superior Courts have entertained petitions regarding pre-arrest bail under exceptional circumstances. In case of petition find directly in High Court, it would be for the party to give cogent, and reasonable explanations for not moving the lower Court in the first instance, as observed hereinabove, no such reasons were advanced by the learned counsel for the petitioner for not approaching the Sessions Court for grant of anticipatory bail.
11. In view of the case-law cited above, I see no exceptional grounds for by-passing the Court of Sessions Judge and approaching this Court for grant of prearrest bail, thus the arguments of Mr. Muhammad Riaz Ahmad, learned counsel for the petitioner are without force, the petition is liable to be dismissed as he failed to approach the Sessions Court in the first instance.
12. Reverting to the next limb of arguments regarding the petitioner being fugitive from the law, suffice it to observe, it may not be appropriate to dilate upon the same as in any case any finding given on absconsa of the petitioner would prejudice the findings given by the trial Court.
13. Reverting to the arguments that there are malafides of the Police to arrest the petitioner un- necessarily to humiliate and harass him. It may be mentioned here that the learned counsel for the petitioner, did not dispute the shortage of .Wheat entailing registration of the case against the petitioner and his allied firms. Mr. Muhammad Riaz Ahmad, Advocate tried to argue that the petitioner was black listed by the Food Department without hearing him which order was set-aside by the High Court in C.P. No. 14/98 vide order dated 15-4- 1998, however, it was mentioned in the said order that the observations made in the order will have no bearing on the criminal case i.e. The case in hand. The learned counsel tried to show that registration of the case was based on mala fides however the shortage of wheat was not disputed by the learned counsel for the petitioner. The learned counsel failed to point out the malice of the police or the complainant towards the petitioner. Mr. Muhammad Riaz Ahmad, Advocate while referring to the audit report stated that as far as shortage is concerned the Department is not certain about the quantity. The learned counsel pointed out to various portions of the audit report wherein various quantity of wheat was shown to be short. Be that as it may, the shortage of wheat in any case has not been disputed irrespective of the quantity mentioned in the FIR.
14. From the perusal of record a prima facie case is made of against the appellant and the petitioner has failed to point out. Any mala fides of the Police and the Food Department to get the petitioner involved falsely, which is a pre-requisite for anticipatory bail. In the case in hand the said conditions are lacking the right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fides or where no offence has shown to be committed, conversely there are serious allegations of mis-appropriations of huge amount of Government money. In this regard I am fortified with the view taken in the following cases. Murad Khan v. Fazal-e-Subhan, in PLD 1993, Supreme Court Page 83 and Muhammad Azam v. The State, 1996 SCM R, 71.
15. In view of the afore-stated facts the request for bail before arrest cannot be considered, thus for the foregoing reasons the petition is dismissed. However any observations made hereinabove will have no bearing on the merits of the case.