' Both accused are facing trial in Crime No,117 of 1998, Police Station Qasimabad, Hyderabad arising out of offences under section 302/ 403/34, P.P.C. On 1st January, 1999, pre-arrest interim bail was granted to both these accused, in the following circumstances:-- "(2) Both these accused persons are involved in F.I.R. No,117 of 1998 of Police Station Qasimabad, Hyderabad in an offence arising out of section 302/403/34, P.P.C. It is alleged in the F.I.R. By the brother of the deceased Mashooq Ali Mughari that the latter went alongwith the two applicants and one other unknown person on the night of 14th December, 1998 and did not return. His body was found in the morning of 15th December, 1998 on the road of Nasim Nagar Phase-III. It was argued by Mr. M.A. Kazi that both these accused and the deceased were having good relations and there is no reason for them to commit such offence. In support, he has filed certain documents. It was further argued that one S.H.O. Of Police Station. Qasimabad, Irshad Soomro, who is on inimical terms with the present applicants/accused, has involved them out of mala fide and ill-will.
According to Mr. M.A. Kazi the said S.H.O. Got involved the applicant Jehangir Samo in Some false cases but subsequently, he was acquitted. After his transfer to Qasimabad Police Station, he has again involved them in this case. According to the learned counsel, the case of the prosecution, at best, is based on 'last seen evidence' which is not a reliable piece of evidence. He argued that on this ground also bail is to be granted. Reliance is placed on Muhammad Akbar Tariq v. The State 1977 PCr.LJ 540, Pinio v. The State 1981 PCr.LJ 1007 and Nazar Muhammad v. The State 1984 PCr.LJ 1678. Issue notice to the Advocate-General, Sindh as well as to S.H.O., Qasimabad Police Station, Hyderabad for 8-2-1999. Till then, both the applicants are admitted to interim pre-arrest bail upon furnishing one solvent surety of Rs,2,00,000 each and P.R. Bond of the like amount to the satisfaction of the Nazir of this Court."
2. On 9-8-1999 Mr. Muhammad Yousuf Laghari, Advocate appeared on behalf of the complainant in the above crime and requested that he may also be heard. At the same time he raised objection against approaching this Court directly without resorting to the remedy of moving pre-arrest bail before the Court of Session at Hyderabad. He placed reliance on a Full Bench decision of Honourable Supreme Court, dated 23rd April, 1997 passed in Criminal Petition No,223-K of 1996 (Muhammad Usman Chandio v. Allah Warayo and others). Following are the relevant portions of the aforesaid decision:-- "9. ' In Criminal Petition No,223-K of 1996 same complainant Muhammad Usman feels aggrieved against grant of bail by the High Court to respondents Amir Sultan and three others vide order, dated 27-10-1996, whereby bail before arrest has been granted. There is difference between bail before arrest and bail after arrest keeping in view the gravity of the offence. In support of the proposition reference can be made to the case of Sarwar Sultan v. The State PLD 1994 SC 133. In the instant case it appears that bail before arrest is granted by the High Court straightaway and the respondents in whose favour order of bail before arrest is passed had not approached the trial Court particularly when jurisdiction of both the Courts is concurrent. In such circumstances opportunity should always be given for exercise of such discretionary jurisdiction to the lower Court first. Even if respondents Amir Sultan and others were joined in the proceedings as accused on the application of complainant in consequence whereof order was passed on 31-8-1996 and that order was passed after hearing both parties in those proceedings but no approach was made on behalf of respondents to apply for bail before arrest in that forum."
3. For last three dates of hearing Mr. Yousuf Laghari for the complainant is not appearing and no satisfactory reason has been assigned for such absence. In such circumstances, I have heard Mr. Muhammad Ashraf Kazi for the applicant/accused and Mr. Javaid Akhtar for the State. At the very outset, it was contended by Mr. Muhammad Ashraf Kazi that no fruitful purpose would be achieved if the Court of Session at Hyderabad is moved for seeking pre-arrest bail as in the Criminal Bail No,42 of 1999, the learned Sessions Judge, Hyderabad vide its order, dated 4th February, 1999 has rejected the bail plea of co-accused Moazzam Memon and had also observed that 'the alleged offence was committed by the said co-accused in connivance with the present applicant'. It was argued that in presence of such observations of the learned Sessions Judge the present applicant could not succeed in obtaining the pre-arrest bail and, therefore, it is just and proper that the bail plea of present accused be considered by this Court on merits. The grounds upon which the pre- arrest bail of the co-accused was rejected by the Sessions Court are as follows:-- 'So far as the contention of learned Advocate for applicant/accused that the statement of applicant/accused recorded before Civil Judge and A.C.M., Hyderabad is not confessional statement, but simply statement on oath which may be treated as statement where applicant/accused has disclosed real fact that he did not participate in the commission of offence but remained silent due to fear as co-accused pointed pistol on him is concerned. But according to my view this contention of learned Advocate for the applicant/accused will not favour the applicant/accused for grant of bail in the present case. Because if this contention is to be believed that applicant/accused remained silent at the time of commission of offence then what is the reason that applicant/accused remained silent for 12 days till he was arrested by police and identified during course of investigation. Therefore, according to my view presence of applicant/accused alongwith co-accused for whole time in the car till he was arrested by police prima facie shows that he shared the common intention with co-accused for commission of offence without prejudice the merits of the case."
4. It was further argued by Mr. Muhammad Ashraf Kazi, while referring to the case of Mukhtar Ahmed Awan 1991 SCM R 322 that it is a rule of propriety and not of law that the application for pre- arrest bail should be filed first before the Court of Session. He has also placed reliance on an unreported case of this Court in Criminal A.T.A. Bail Application No,401 of 1999 (Abdul Latif Ansari and 2 others v. The State) where a Division Bench comprising of Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ. Granted pre-arrest bail to the accused person who has directly approached this Court. The relevant observations of learned Division Bench are as follows:- "In the case of The State v. Mukhtar Ahmed Awan 1991 SCM R 322 it was held that it is a rule of propriety but not of law that in each and every case bail application must be moved before the lower forum in the first instance. Thus, it is clear that this Court while looking towards the peculiar facts and circumstances of each case can entertain bail application directly. In the case of Shoaib Suddle 1997 SCM R 1234 bail application was directly entertained by a Single Bench of this Court headed by our Lord Mr. Justice Kamal Mansur Alam, while he was a Judge of this Court.
' In view of the above legal and factual position, we feel that this Court is not devoid of jurisdiction to entertain the present application for bail."
5. Mr. Muhammad Ashraf Kazi has also referred to the case of Ch. Muhammad Anwar Samma and another v. The State 1976 SCM R 45 at page 47 where a former Chief Justice of Pakistan Hamoodur Rahman, J. (as his Lordship then was) while speaking for the Full Bench, held inter alia that:-- "There is, of course, no statutory bar to an applicant moving the High Court direct for the grant of pre-arrest bail, there is also no Rule in that but even if there is such a practice it does not appear to be a practice which is uniformly followed by the Lahore High Court. In the circumstances, there must be some rational basis on which the High Court can pick and choose the cases in which it should insist upon the applicant first moving the Sessions Court and the cases in which it will not do so. It cannot do so arbitrarily upon its whims and fancies."
6. In the instant case the pre-arrest bail of the co-accused has been rejected by the learned Sessions Judge, Hyderabad and one of the observation in that bail order was that there are sufficient material available to connect that co-accused alongwith the present applicants. In such circumstances it will not be just and fair to force the present applicants/accused to appear before such Court who has already disclosed its mind. Although, the observations and comments made in a bail order are always tentative but at the same it is well-settled that the two accused placed in identical situation are to be treated in the same manner. In my considered view, this is a fit case where there appears no bar in entertaining direct application for pre-arrest bail. See Shamrez Khan v. The State 1999 PCr.LJ 74.
7. In so far merits of the case are concerned, it was argued that there are only two materials available against the applicant/accused namely (i) statement of co-accused and secondly the last-seen evidence. On both these scores. It was argued that no conviction could be sustained on such piece of evidence. This legal position has not been disputed by the learned counsel appearing for the State who has rightly conceded confirmation of the pre-arrest interim bail. In this background, it was strenuously contended that the arrest of applicants/accused will amount to humiliation and harassm ent. Without expressing any comments on the material produced before this Court, I would like to observe that on merits as well this bail application entitles to be granted.
8. In view of the aforesaid circumstances and the law discussed hereinabove, the pre-arrest bail granted to accused on 1st January, 1999 is hereby confirmed on the same terms and conditions. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.