ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail Appln. No. S- 01 of 2010
DATE ORDER WITH SIGNATURE OF JUDGE
FOR HEARING.
09.09.2011.
Mr. Ayaz Hussain Tunio, Advocate along with Applicant.
Mr. Shahzado Saleem Nahiyoon, Assistant P.G for the State.
Mr. Ishrat Ali Lohar, Advocate for Complainant.
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Through the instant application Applicant Abdul Ghaffar seeks pre-arrest bail in Crime No. 107/2009 of P.S Daur District Shaheed Benazirabad for offence registered under sections 302, 337-L(ii), 504, 114, 34 PPC.
According to prosecution version on 27.11.2009 at about 09-30 a.m accused each Abdul Ghaffar, Sarfraz, Abbas alias Bagu and Tajoo came at the lands of Complainant out of them Abdul Ghaffar and Sarfraz were armed with repeaters, Abbas alias Bagu with hatchet while Taju with lathi. On the instigation of accused Abdul Ghaffar co-accused Sarfraz Rajput opened fire, from his repeater, upon Muhammad Rasheed, who raised cries and fell down, whereas accused Abbas alias Bagu inflicted hatchet injuries upon P.Ws Waseem and Muhammad Hanif and accused Taju Baladi also caused lathi blows. Ultimately, due to firearm injury deceased Muhammad Rasheed succumbed to his injuries.
Mr. Ayaz Hussain Tunio learned Counsel for the Applicant contended that the Applicant is innocent and has falsely been implicated in this case due to political rivalry. He further contended that no overt act is attributed to the present Applicant except instigation. Per learned Counsel, Applicant has been implicated in this case because of co-accused Sarfraz, who is his real son. He further contended that a counter case in respect of same incident has been lodged under Crime No. 109/2009 and since there are counter versions and it is yet to be determined as to who was aggressor and who was aggressed upon. In support of his contention learned Counsel placed reliance on the following cases:-
1. TARIQ and 2 others V. THE STATE (2009 P.Cr.L.J 320)
2. MUAHMMAD SHAHZAD SIDDIQUE V. THE STATE and another (PLD 2009 S.C 58)
3. QADIR BAKHSH V. ALLAH WASAYO and others (2008 SCMR 182)
4. HAMZA ALI HAMZA and others V. THE STATE (2010 SCMR 1219)
Conversely, Mr. Shahzado Saleem Nahiyoo learned A.P.G for the State opposed the application on the ground that the name of the Applicant finds place in the F.I.R. and at the time of occurrence, he was armed with repeater and on his instigation co-accused Sarfraz opened fire upon the deceased, whereby deceased lost his life.
Mr. Ishrat Ali Lohar learned Counsel for the Complainant also adopted the arguments of Assistant P.G however, he further contended that instead of approaching the Court of first instance the Applicant has approached this Court without any cogent reason. Per learned Counsel, the Applicant seeks pre-arrest bail; which is extra ordinary concession and cannot be granted to him unless he pleads mala fide or ulterior motive on the part of prosecution or Complainant. In support of his contention, learned Counsel placed reliance on the following cases:-
1. MUHAMMAD ARSHAD V. MUHAMMAD RAFIQUE and another (PLD 2009 Supreme Court 427)
2. RIAZ AHMED V. THE STATE (2009 SCMR 725)
3. Malik ZAFAR ABBAS V. Agha RAZA ABBAS QAZILBASH and another (2002 Supreme Court 529)
So far the contention of learned Counsel for Complainant with regard to direct approach to this Court instead of approaching the Court of first instance is concerned, it is held by their Lordships that normally a person against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e Sessions Judge in the matter of bail before arrest because propriety so demands, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can approach directly to the High Court by invoking its concurrent jurisdiction. It is further held that if such an application has been moved before the High Court and it has entertained the same and granted interim bail to the Applicant, then instead of dismissing same on technical grounds it should dispose it of on merits. In this context reference can be made to a case of RAIS WAZIR AHMED V. THE STATE ((2004 SCMR 1167). In the above case the Applicant directly approached the High Court where he was granted interim pre-arrest bail, however, subsequently when application came up for confirmation or otherwise of the bail, the High Court declined to confirm the bail and Applicant was directed to approach the Sessions Court within stipulated time for getting himself admitted to bail. However, the Applicant approached the apex Court whereby he was granted pre-arrest bail. In QADIR BAKHSH’s case, supra, the Applicant approached the High Court where he was granted pre-arrest bail and that order was assailed before the Supreme Court but the Supreme Court did not disturb the order passed by High Court. In SHAFI MUHAMMAD v. THE STATE’s case (1990 P.Cr.L.J 1157) the accused was granted bail by this Court though he was armed with firearm but did not cause any injury to the deceased or any P.W and the accused was implicated along with other male members of his family. While considering the above aspects, accused were granted bail by this Court.
As far as the plea of malafide or ulterior motive is concerned, in this respect the Applicant has stated that he has political background as his brother is the Member of Central General Counsel of Pakistan Muslim League and due to above reason he has been implicated in this case malafidely. He further stated that his brother Abdul Jabbar has filed Constitutional Petition No. 860/2009 against the Police officials of District Shaheed Benazirabad for causing harassment to him and his family members.
With profound respect, law relied upon by the learned Counsel for the Complainant is distinguishable and not helpful to the case of Complainant.
Upon a perusal of F.I.R. it appears that no overt act is attributed to the present Applicant except instigation. It was co-accused Sarfraz, who caused firearm injury to deceased Muhammad Rasheed and committed his murder, even the present Applicant did not cause any injury to the deceased or any P.W.
For the foregoing reasons and dicta laid down by apex Court in the cases of (1) Tariq and 2 others V. The State, (2) Muhammad Shahzad Siddique V. The State and another, (3) Qadir Bakhsh V. Allah Wasayo and others, (4) Rais Wazir Ahmed V. The State (5) Hamza Ali Hamza and others V. The State and (6) Shafi Muhammad V. The State, supra, application is allowed; consequently the order dated 01.01.2010, whereby Applicant was granted interim bail, is hereby confirmed on same terms and conditions.
JUDGE