RAIS WAZIR AHMAD vs THE STATE

ORDER

' LFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition has been filed against judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 16th March, 2004.

2. Precisely stating the facts of the case are that the petitioner hasbeen involved in a case registered under section 506, P.P.C. Vide F.I.R. No,52 of 2003 recorded on 20th May, 2003 in pursuance of report No,18, dated 29th October, 2000 on the complaint of Rais Munir Ahmad son of Rais Ghazi Muhammad stated to be the real brother of the petitioner. It may be noted that after recording of report No,18, at the initial stage, investigation was carried out by the concerned authorities but no case cognizable by the police was made out, as such statedly the case was not registered. Ultimately, an application was submitted by the complainant before the Additional Sessions Judge, Sadiqabad, who, after having gone through the same directed the police to register the case against the petitioner and if at subsequent stage, it is noticed that no case is made out then F.I.R. May be discharged. Probably, apprehending his arrest by the police, petitioner directly approached the High Court for bail before arrest. Acceding to his request, petitioner was admitted to ad interim bail vide order, dated 21st January, 2003, contents of the said order are reproduced hereunder:-- "Learned counsel appearing on behalf of the petitioner submits that the F.I.R. Lodged against the petitioner was based on political victimization and even from the contents of the F.I.R., no cognizable offence has been made out, especially the offence under section 506, P.P.C., which does not fall within the prohibitory clause of section 497, Cr.P.C. It has also been requested that as the F.I.R. Was registered upon the direction ofthe learned Additional Sessions Judge, Sadiqabad, therefore, this petition may be heard by this Court.

(2) Considering the facts and importance of the case, notice is issued to the State for 10-12-2003.

Meanwhile, the petitioner is granted interim pre-arrest bail in the sum of Rs,20,000 (Twenty thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar of this Court."

3. Later on, application came up for confirmation or otherwise of the bail, granted to the petitioner, learned High Court declined to confirm the bail and vide impugned order directed the petitioner to approach the Sessions Judge till 24th March, 2004 for getting himself admitted to bail. Concluding para. Therefrom is reproduced as under:-- "In order to facilitate the petitioner to approach the Sessions Court, in the first instance, bail already granted to him shall continue till 24-3-2004 and if he does not move bail petition to the Sessions Court till then, this order will automatically lapse. This petition is accordingly disposed of."

4. Against the above order, instant petition has been filed.

5. Learned counsel for the petitioner stated that once the learned High Court had granted ad interim bail to the petitioner and he had also furnished bail bonds in compliance of the order of the Court, then it ought to have disposed of the same on merits keeping in view the facts and circumstances of the case, which were fully narrated in the petition for bail before arrest. He also stated that as the case has been registered for an offence under section 506, P.P.C., which entails two years sentence, instead of directing the petitioner to approach Sessions Court, High Court could have granted bail to petitioner itself. He also argued that as notice has been given to the State and caveator has also appeared, therefore, this Court is competent to grant bail to the petitioner.

6. Learned counsel for caveator opposed the request of the petitioner for grant of bail and stated that it is consistent practice of Criminal Law that, in the first instance, an aggrieved person should approach the original Court having jurisdiction in the matter for grant of bail before arrest instead of directly approaching the higher Courts for the same relief. Even now petitioner may be granted two/three weeks time to approach the Sessions Court for grant of bail before arrest.

7. Learned Additional Advocate-General, Punjab, appearing on behalf of the State also opposed the request of the petitioner for grant of bail by this Court.

We have heard learned counsel for the parties and gone through the record, so made available, carefully. 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 a 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 Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322;.Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v.The State 1997 PCr.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 then instead of dismissing it on technical grounds it should have disposed it of on merits. As in this case the charge against the petitioner is under section 506, P.P.C. And allegedly case has been registered against the petitioner at the instance of complainant due to his political influence as has been narrated in application for grant of bail, then the Court instead of rejecting plea of the petitioner for bail before arrest ought to have decided application on merits.

9. Under such circumstances we are of the opinion that as offence under section 506 entails sentence of two years and allegations of mala fides have also been pleaded specifically by the petitioner against the complainant, therefore, it would not be in the interest of justice to send back the case to High Court for decision on merits.

10. Accordingly petition is converted into appeal and allowed. Petitioner is granted bail subject to furnishing surety bond in the sum of Rs,25,000 (Rupees twenty-five thousand only) with P.R. Bond in the like amount to the satisfaction of the Sessions Judge, Rahimyar Khan.

' Above are the reasons of our short order of even date.

Pre-arrest .