2011 PCr.LJ 601
2011 PCr.LJ 601
[Karachi]
Before Salman Hamid, J
NIAZ ALI---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. S-368 and M.As. No. 1386, 1387 of 2010, decides on 26th July, 2010.
Criminal Procedure Code (V of 1898)---
----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.457, 436 & 427---Lurking house-trespass and mischief----Pre-arrest bail, refusal of--Jurisdiction of High Court and Sessions Court in granting bail---Scope---Jurisdiction of the High Court and the Sessions Court being concurrent, it was always beneficial for accused to first approach the Court of Session as that court was invariably in almost all cases, pending before it, was better equipped to explore the factual inquiries, necessary for the decision of the bail application---Accused not approaching the court below first, its jurisdiction at such level had been by-passed and that such court rendered redundant---Even if some fresh question was not duly agitated before, even then it was normally found desirable to agitate the same before the court of first instance, rather than come running to the High Court---Such being the position, without touching merits of the case, interim pre-arrest bail granted to accused was recalled and pre-arrest bail application was dismissed.
Mazhar Ali Mangan for Applicant.
Imtiaz Ali Shahani for the State.
ORDER
SALMAN HAMID, J.---In terms of Order dated 2-6-2010, my brother Judge, (Mr. Justice Hasan Azhar Rizvi) granted interim pre-arrest bail to the applicant without going into the merits of the case in the sum of Rs. 100,000 and P.R. bond in the like amount to the satisfaction of Additional Registrar of this Court. Thereafter from 8-6-2010 this bail application was adjourned for one or the other reason. Finally it came up for hearing today when after hearing, it was dismissed by me for reasons to follow.
From the scrutiny of the record, it appears that. in the first instance F.I.R. vide Crime No. 34 of 2008 of Police Station Ghouspur District Kashmore at Kandhkot under sections 457, 436 and 427, P.P.C. was lodged by the complainant Niaz Ali son of Rind Ali Bejarani, Incharge Utility Store Police Council Ghouspur, wherein it was essentially mentioned that when he went to the store in the morning he found that there was a breach in the eastern side wall of store and there was fire in it. He also noticed footprints presumably of three people at the site of the fire. The complainant immediately contacted his higher ups at Shikarpur and on their arrival went inside the store, prepared inventory of the goods destroyed in the tire and thereafter went to Shikarpur along with his higher ups to lodge F.I.R. in respect of the above incidence into the matter therefore, he approached Police Station and lodged F.I.R. against unknown persons.
It further appears from the record of the file that two F.I.Rs. have been, connected together in the present case inasmuch as that according to the applicant he was asked for illegal gratification by the complainant of the second F.I.R. namely Orangzeb and that when it was refused by the applicant, he has been framed into it (second F,I.R.) by connecting present mis-appropriation with the fire of 2008. According to the applicant, case for confirmation of pre-arrest bail was therefore made out.
The above submissions of learned counsel would have been appreciated in its true perspective only if it was shown to this Court that the bail application which was stated to have been moved before the Court of first instance was indeed moved, heard and decided against the applicant and thereafter he has approached this court. In the present case the applicant himself has stated in his application at least on two places that "Prior to this the application for bail before arrest was filed before the honourable Sessions Judge, Kandhkot but the same was not entertained with verbal direction to file the same before the Anti-Corruption Court. Thereafter again another bail application was tiled but the same was not entertained. Hence this criminal bail before arrest application." It is hard to conceive that verbal direction was given by the learned Sessions Judge, Kashmore at Kandhkot that he would not entertain the bail application and the applicant should approach the Anti-Corruption Court and that thereafter the applicant had made application for pre-arrest bail before such court and that too was not entertained. It is also not clear from the narration of the application as to before which court second bail application was moved and what happened in that second bail application inasmuch as that the applicant has failed to produce certified copy of the bail application that was stated to have been moved before Sessions Judge Kandhkot or before the Anti-Corruption Court.
Learned counsel appearing on behalf of the State vehemently opposed the confirmation of the interim pre-arrest bail on the ground that the applicant without exhausting his remedy before the court of first instance and,has directly approached this court. The applicant has also failed to show what were the extraordinary and unexceptional circumstance which prevailed upon him to move the present pre-arrest bail application, which normally is a condition precedent for grant of pre-arrest bail.
Needless to mention that the jurisdiction of the High Court and the Session Court is concurrent and therefore it is always beneficial for the applicant to first approach the Court of Session as that court is invariably in almost all cases, pending before it is better equipped to explore the factual inquiries necessary for the decision of the bail application. The applicant not approaching the court below first, its jurisdiction at such level had been by passed and that such court rendered redundant. It is well-settled by now that even if some fresh question is required to be raised in the context of a prayer in the bail, which was not duly agitated before, even then it is normally found describle to agitate it before the court of first instance rather than come running to the High Courts. Such being the position and without the touching merits of the case, the interim pre-arrest bail granted to the applicant earlier is recalled and the present pre-arrest bail application is dismissed.
This bail application stands disposed of along with listed applications.
H.B.T./N-38/K Bail refused.
[Karachi]
Before Salman Hamid, J
NIAZ ALI---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. S-368 and M.As. No. 1386, 1387 of 2010, decides on 26th July, 2010.
Criminal Procedure Code (V of 1898)---
----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.457, 436 & 427---Lurking house-trespass and mischief----Pre-arrest bail, refusal of--Jurisdiction of High Court and Sessions Court in granting bail---Scope---Jurisdiction of the High Court and the Sessions Court being concurrent, it was always beneficial for accused to first approach the Court of Session as that court was invariably in almost all cases, pending before it, was better equipped to explore the factual inquiries, necessary for the decision of the bail application---Accused not approaching the court below first, its jurisdiction at such level had been by-passed and that such court rendered redundant---Even if some fresh question was not duly agitated before, even then it was normally found desirable to agitate the same before the court of first instance, rather than come running to the High Court---Such being the position, without touching merits of the case, interim pre-arrest bail granted to accused was recalled and pre-arrest bail application was dismissed.
Mazhar Ali Mangan for Applicant.
Imtiaz Ali Shahani for the State.
ORDER
SALMAN HAMID, J.---In terms of Order dated 2-6-2010, my brother Judge, (Mr. Justice Hasan Azhar Rizvi) granted interim pre-arrest bail to the applicant without going into the merits of the case in the sum of Rs. 100,000 and P.R. bond in the like amount to the satisfaction of Additional Registrar of this Court. Thereafter from 8-6-2010 this bail application was adjourned for one or the other reason. Finally it came up for hearing today when after hearing, it was dismissed by me for reasons to follow.
From the scrutiny of the record, it appears that. in the first instance F.I.R. vide Crime No. 34 of 2008 of Police Station Ghouspur District Kashmore at Kandhkot under sections 457, 436 and 427, P.P.C. was lodged by the complainant Niaz Ali son of Rind Ali Bejarani, Incharge Utility Store Police Council Ghouspur, wherein it was essentially mentioned that when he went to the store in the morning he found that there was a breach in the eastern side wall of store and there was fire in it. He also noticed footprints presumably of three people at the site of the fire. The complainant immediately contacted his higher ups at Shikarpur and on their arrival went inside the store, prepared inventory of the goods destroyed in the tire and thereafter went to Shikarpur along with his higher ups to lodge F.I.R. in respect of the above incidence into the matter therefore, he approached Police Station and lodged F.I.R. against unknown persons.
It further appears from the record of the file that two F.I.Rs. have been, connected together in the present case inasmuch as that according to the applicant he was asked for illegal gratification by the complainant of the second F.I.R. namely Orangzeb and that when it was refused by the applicant, he has been framed into it (second F,I.R.) by connecting present mis-appropriation with the fire of 2008. According to the applicant, case for confirmation of pre-arrest bail was therefore made out.
The above submissions of learned counsel would have been appreciated in its true perspective only if it was shown to this Court that the bail application which was stated to have been moved before the Court of first instance was indeed moved, heard and decided against the applicant and thereafter he has approached this court. In the present case the applicant himself has stated in his application at least on two places that "Prior to this the application for bail before arrest was filed before the honourable Sessions Judge, Kandhkot but the same was not entertained with verbal direction to file the same before the Anti-Corruption Court. Thereafter again another bail application was tiled but the same was not entertained. Hence this criminal bail before arrest application." It is hard to conceive that verbal direction was given by the learned Sessions Judge, Kashmore at Kandhkot that he would not entertain the bail application and the applicant should approach the Anti-Corruption Court and that thereafter the applicant had made application for pre-arrest bail before such court and that too was not entertained. It is also not clear from the narration of the application as to before which court second bail application was moved and what happened in that second bail application inasmuch as that the applicant has failed to produce certified copy of the bail application that was stated to have been moved before Sessions Judge Kandhkot or before the Anti-Corruption Court.
Learned counsel appearing on behalf of the State vehemently opposed the confirmation of the interim pre-arrest bail on the ground that the applicant without exhausting his remedy before the court of first instance and,has directly approached this court. The applicant has also failed to show what were the extraordinary and unexceptional circumstance which prevailed upon him to move the present pre-arrest bail application, which normally is a condition precedent for grant of pre-arrest bail.
Needless to mention that the jurisdiction of the High Court and the Session Court is concurrent and therefore it is always beneficial for the applicant to first approach the Court of Session as that court is invariably in almost all cases, pending before it is better equipped to explore the factual inquiries necessary for the decision of the bail application. The applicant not approaching the court below first, its jurisdiction at such level had been by passed and that such court rendered redundant. It is well-settled by now that even if some fresh question is required to be raised in the context of a prayer in the bail, which was not duly agitated before, even then it is normally found describle to agitate it before the court of first instance rather than come running to the High Courts. Such being the position and without the touching merits of the case, the interim pre-arrest bail granted to the applicant earlier is recalled and the present pre-arrest bail application is dismissed.
This bail application stands disposed of along with listed applications.
H.B.T./N-38/K Bail refused.
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