LIAQUAT ALI SHAH vs The STATE
This matter concerns an application for pre-arrest bail filed directly before the High Court in a criminal case involving offences under the Pakistan Penal Code 1860. The core legal question was whether the High Court should exercise its concurrent jurisdiction under Section 498, Code of Criminal Procedure 1898, to entertain a pre-arrest bail application when the applicant had not first approached the Sessions Court. The Court held that while it possesses concurrent jurisdiction, it is a matter of judicial propriety that an accused should first approach the trial court (the Sessions Judge) for pre-arrest bail, unless compelling circumstances exist to justify bypassing that forum. Finding no such compelling circumstances in the present case, the Court declined to entertain the application on merits. The key principle laid down is that while the High Court has concurrent jurisdiction under Section 498, Code of Criminal Procedure 1898, it will not ordinarily entertain a pre-arrest bail application directly unless the applicant demonstrates exceptional or compelling circumstances, as bypassing the Sessions Court is generally discouraged in the interest of judicial propriety.
- Can an accused directly approach the High Court for pre-arrest bail without first approaching the Sessions Court?
- Does the High Court have concurrent jurisdiction under Section 498 of the Code of Criminal Procedure 1898 to entertain pre-arrest bail applications?
- Are there circumstances under which the High Court will entertain a pre-arrest bail application despite the availability of the Sessions Court as a forum?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 337H-2, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 498, Code of Criminal Procedure 1898
- Rule 7, High Court Bench Rules 1987
ORDER
' FAROOQ ALI CHANNA , J.---Through instant application, the applicant seeks the pre-arrest bail as he apprehends his arrest in F.I.R. No, 330 of 2011 offences under sections 302, 324, 114, 337H-2/147, 148, 149, P.P.C. Of Police Station Obharo, District Gotki.
2. Learned counsel for the applicant was required to satisfy this Court as to how the jurisdiction of this Court has been invoked directly without approaching the trial court i,e, Sessions Judge.
Learned counsel has contended that there exist old enmity between the parties therefore there is apprehension of quarrel and the arrest of applicant at the instance of complainant party who are influential persons of the locality. Learned counsel has further contended that co-accused Syed Safdar Ali Shah has already been granted bail by this Court, in the same F.I.R. Vide order dated 27- 2-2012 passed in Criminal Bail Application No,215 of 2012. Learned counsel has further contended that this Court, having concurrent jurisdiction under section 498, Cr.P.C. Is competent to entertain the bail before arrest application and decide the same on merits. Learned counsel has relied upon PLD 2000 Kar. 6 (Riaz Ahmed Goharshahi v. The State), PLD 2003 Karachi 682 (Abdul Rasheed v. The State), 2004 SCMR 1167 (Rais Wazir Ahmad v. The State).
3. I have considered the arguments and perused the record. There appears no legal justification in the plea of learned counsel for the applicant regarding the quarrel with the complainant party if the applicant approaches the Sessions Court at Gotki as, apparently the case has been challaned and the applicant has to face the trial at Gotki. So far the concurrent jurisdiction under section 498, Cr.P.C. Of this Court for entertaining the bail before arrest application is concerned, it has been held in the matters reported in the above citations relied upon by the learned counsel for the applicant that normally a person against whom a case has been registered, may approach in the first instance to the original Court i,e, Sessions Judge for bail before arrest because the propriety so demanded, but it is not an absolute rule depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction. In the instant case no compelling circumstances have been brought on record by the learned counsel for the applicant and it is always desirable that matter be heard by the Sessions Court firstly, in order to avoid by-passing the jurisdiction of that Court as such it is not a case of invoking the concurrent jurisdiction of this Court. So far the bail to co-accused Syed Safdar Ali Shah in Criminal Bail Application No,215 of 2012 is concerned the perusal of order dated 27-2-2012 reveals that no interim pre-arrest bail was granted to the co-accused, however, a protective bail was granted to him.
5. Apart from above the request of the applicant under rule 7 of the High Court Bench Rules 1987 was granted to the extent of protective bail at Karachi. In the circumstances, no case for entertaining the application for bail before arrest under the concurrent jurisdiction under section 4 98 , Cr.P.C. Of this Court is made out.
6. However, keeping in view the apprehension of applicant of his arrest before his reaching the Sessions Court and in the interest of justice, without touching the merits of the case protective bail for a period of 10 days is granted to the applicant to appear and surrender before the Sessions Court for the relief of bail before arrest but subject to his furnishing surety in the sum of Rs,100,000 and PR bond in the like amount to the satisfaction of Nazir of this Court.
' This order will cease to be effective on 25-10-2012 or when the applicant appears and surrenders before the Sessions Judge Gotki for relief of pre-arrest bail, which ever may be earlier.
' Application stands disposed of in the above terms.