2019 Y L R 183
[Balochistan]
Before Abdullah Baloch, J
ABDUL NAFEY---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No.566 of 2017, decided on 4th January, 2018.
(a) Criminal Procedure Code (V of 1898) ---
----S. 498 --- Pre-arrest bail --- Direct Petition to High Court ---Practice and procedure---If
the life of accused was under threat in approaching the Trial Court, then he could directly
approach the High Court for pre -arrest bail.
Rais Wazir Ahmed v. The State 2004 SCMR 1167 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 498 ---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd, common intention ---
Bail, confirmation of ---Further inquiry ---Cross -cases ---Record showed that cross cases
were registered by both the parties against each other and the persons from both the sides
received injuries caused due to firing or inflicting blows of dagger/knife ---In present case
deceased had died allegedly by the firing of the one of the members of accused party ---
Both the occurrences had taken place within 45 minutes, hence it was yet to be determined as to which party was the aggressor and which party was the victim of aggression ---Said fact could only be ascertained during trial ---Accused nominated in the
FIR had already been granted bail, thus, on the rule of consistency the accused was
entitled to grant of bail ---Ad-interim pre -arrest bail granted to accused was confirmed in
circumstances.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497---Bail, grant of ---Heinousness of offence ---Effect ---Merely the offence being
heinous in nature or falling within the ambit of prohibitory clause of S.497(1) Cr.P.C. was not enough to withhold the concession of bail.
Muhammad Yaqoob v. The State 2012 MLD 355 rel.
Muhamma d Wasay Tareen for Applicant.
Rehmatullah Barech and Azizullah Khan for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 2nd January, 2018.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Criminal Bail Before Arrest
Application No.566 of 2017, whereby the applicant Abdul Nafay son of Haji Sazai, is
seeking bail before arrest in FIR No.53 of 2017 was lodged with Levies Station, Chaman under section 302/34, P.P.C.
2. Facts of the case are that the complainant Muhammad A zeem lodged above FIR at
Levies Station, Chaman, stating therein that on 18th May 2017, he along with the accused party are residents of same village i.e. Sanzala Karez. On 15th May 2017 at about 6.15 p.m. his brother Zain- ud-Din was going to purchase hous ehold articles from the nearby
General Store, when the accused namely Jahanzaib started firing upon his brother, due to which he received bullet injuries and fell down. The crime was witnessed by Rehmatullah and Javed and they also took him to hospital, but in the way the injured succumbed to the injuries and died.
3. It appears from the record that prior to registration of instant case, the accused
party had also lodged FIR No.49 of 2015 at the same Levies Station, under Sections 337-ADF, 337 -H2, 147, 148, 149, P.P.C., against the complainant party.
4. The accused/applicant appeared before this Court along with his counsel for grant
of ad -interim pre -arrest bail, hence ad -interim pre -arrest bail was granted to him by this
Court, vide order dated 26th December 2017.
5. Learned counsel for the accused -applicant contended that he is innocent and has
not committed any offence whatsoever alleged by the prosecution in the FIR rather it was the complainant party comprising of 20- accused persons, who first launched attack upon
the accused party, due to which four persons received serious injuries and accordingly FIR No.49/2015 was lodged against them, but just to pressurize and to minimize the gravity of FIR already registered against the complainant party, succeeded in lodging the
present FIR against the accused/applicant and others, hence a case of further inquiry has been made out entitling the accused -applicants for confirmation of his ad- interim bail;
that the accused nominated in FIR No.49/2015 have been granted bail, thus as a rule of
consistency the accused/applicant is entitled for confirmation of bail in the case in hand, which is the result of a counterblast; that the investigation in the matter has been completed and the accused -applicant is no more require d for the purpose of interrogation
or probe.
6. Conversely, the learned State Counsel assisted by the learned counsel for the
complainant vehemently opposed the arguments so advanced by the counsel for the applicant and contends that the alleged offense is non-bailable carrying punishment for
death or life imprisonment and the accused was nominated in the promptly lodged FIR with specific role of firing, thus he is not entitled for confirmation of his ad- interim bail.
It has further been contended that the applicant has directly approached this Court incompetently for grant of bail rather at the first instance he ought to have approached the competent Court of law having jurisdiction in the matter, thus on this ground too he is not entitled for grant of bail .
7. 1 have heard the learned counsel for the parties and with their able assistance gone
through the record. Before dilating upon the material available on record, it would be
better to first discus the objection taken by the learned State Counsel as well as by the
counsel for the complainant that the applicant has directly approached this Court instead of approaching the trial Court. Suffice to observe here that the objection so taken is without any substance, because in exceptional circumstances, where t he life of a person is
under threat to directly approach the trial Court, then under such circumstances he can directly approach this Court. Admittedly, tribal enmity exists between both the parties and FIRs against both the parties have already been lodged, thus a genuine reason exists in favour of the accused to directly approach this Court. Reliance is placed on case of Rais Wazir Ahmed v. The State 2004 SCMR 1167, wherein it was held that:
"It is true 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. Reference may be made to Sh. Zahoor Ahmed v. The State PLD 1974 Lah.256; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The Stat e 1995 PCr.LJ 785; Agha Muhammad Jamali v. The State
1997 PC.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant the n instead of dismissing it on
technical grounds it should have disposed it of on merits."
8. It has been observed that cross -cases were registered by both the parties against
each other and the persons from both the sides received injuries caused due to fi ring or
inflicting blows of dagger/ knife etc., while in the case the deceased Zain -ud-Din has
been died allegedly by the firing of one Jehanzaib, while perusal of statements under 161, Cr.P.C. of prosecution witnesses attributed alleged aerial firing to a pplicant and co-
accused Abdul Wasay by means of pistols. Besides, both the occurrences had taken place within the shortest span of time i.e. 45- minutes, hence it is yet to be determined that
which party was the aggressor and which party is the victim or defend themselves from aggression, this fact can only be ascertained during trial after recording of evidence, till then it is a case of further inquiry. Besides, as per counsel for applicant the accused nominated in the cross FIR No.49/2015 have already bee n granted bail and learned
counsel for the complainant conceded the same, thus on the rule of consistency too the accused/applicant is also entitled for grant of bail. Merely an offence of being heinous in nature or falling within the ambit of prohibitory clause of Section 497(1) Cr.P.C. is not enough to withhold the concession of bail. Reliance is placed on the case of Muhammad Yaqoob v. The State 2012 MLD 355 in the following terms:
"...Apart from this a person cannot be refuted the premium of bail only on the ground that he is nominated in the crime report. Mere mentioning the name of any person in a murder case does not disentitle him for grant of pre -arrest bail. The
Court while deciding the petition can examine the accusations, the report of the inves tigating agency and even can touch upon the merits of the case. Reference in
this regard can be made to the cases of Meeran Bux v. The State and another PLD 1989 SC 347 and Muhammad Riaz Minhas v. The State (1990 PCr.LJ 1353 Lahore)
7. In the instant case nevertheless there is a direct allegation of causing firearm
injury on the non- vital part of injured prosecution witness, however, possibility
cannot be ruled out that the prosecution has thrown a wider net and involved as
many male members of the family. Petitioner being behnoi of the main accused
was also saddled of causing injury but the same was found false during the course of investigation. The petitioner having not been assigned any overt act, does not constitute an offence and that's too being the neighbour, therefore, in opinion of
this Court it is a fit case; wherein the Court should come for the rescue of innocent person. Needless to mention that investigation of the case is already complete and nothing is to be recovered from the petitioner.
8. For the foregoing reasons, this Court is of the firm opinion that sufficient
grounds exist persuading this Court to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 29- 8-2011
subject to h is furnishing fresh bail bonds in the sum of Rs.1,00,000 with one
surety in the like amount to the satisfaction of learned trial court."
9. Keeping in view on tentative assessment of record, the counsel for the applicant -
accused has successfully made out a case of further inquiry in favour of the
accused/applicant, therefore, I am inclined to accept the instant application and to confirm the ad interim pre -arrest bail granted to the accused/applicant by this Court, vide order
dated 26th December, 2017. The accused/applicant is directed to fully cooperate with the Investigating Agency for the purpose of investigation and appear before the trial Court for proceedings.
The observations made hereinabove are tentative in nature and the same shall not
influence t he merits of the case.
JK/27/Bal. Bail confirmed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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