' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal, with the leave of the Court, has been directed against the judgment p4ssed by the High Court on 2-8-2002, whereby the application for pre- arrest omnibus bail, which was initially allowed by the High Court, was subsequently dismissed.
2. The necessary facts, giving rise to the present appeal, are that an application for pre-arrest omnibus bail was moved by the appellant before the High Court alleging therein that the'
Chairman and Deputy Chief Prosecutor of Ehtesab Bureau have personal animosity and grudge against the appellant on account of which they are resorting to mala fide and unwarranted actions likely to culminate into his arrest which will humiliate him in the society. It was also alleged by the appellant that the Deputy Chief Prosecutor Ehtesab Bureau has issued a statement in Daily "Mohasib" published on 29-4-2002, levelling serious allegations of corruption against him on account of which he apprehends that he might be arrested. The appellant was allowed pre-arrest omnibus bail through the order of the High Court dated 30-4-2002 but subsequently vide the impugned order dated 2-8-2002 the application was dismissed mainly on the ground mentioned at page 3 of the impugned judgment which is reproduced below:-- "After Mr. Basharat Ahmed Shaikh's absence on leave to be followed by the resignation, the apprehension of alleged mala fide and arbitrary actions against the petitioner by Mr. Shaikh stands evaporated. The Bureau is now headed by a sitting Brigadier of Pakistan Armed Forces against whom no animosity or enmity is alleged by the petitioner. Hence, the apprehension of his arrest with a mala fide designs by the Bureau has disappeared, which alone is and could be a ground for allowing the omnibus bail application. No other ground is alleged for bail nor is bail sought in any particular case under inquiry/ investigation of the Bureau."
' The application of the appellant, thus, was dismissed by the High' Court without expressing itself as to whether any case is registered against the appellant or is pending investigation/inquiry which he feels apprehension-of his arrest.
3. Mr. Mujahid Hussain Naqvi, arguing his own case, contended that by dismissing the application of pre-arrest omnibus bail, the High Court adverted only to the point of leave and ultimately resignation of Mr. Justice (Rtd.) Basharat Ahmed Shaikh, the then Chairman Ehtesab Bureau, however, it. Failed to advert to the point as to whether the appellant apprehends his arrest on the basis of some case registered against him or some inquiry being conducted by the Ehtesab Bureau and as to whether some material was produced by the prosecution which connects the appellant with the commission of alleged offence. The appellant referred to page 35 of the paper book Annexure "PD" wherein a letter was written by Director, Investigation of Ehtesab Bureau to Secretary, Information Azad Government of the State of Jammu and Kashmir, stating therein that against Mr. Majahid Hussain Naqvi, the appellant herein, investigation is carried on regarding his misappropriation and corruption and for the purpose of completion of investigation the original record may be sent to Investigating Officer uptil 25-4-2002. In this letter almost eleven items have been mentioned which have been shown to be under investigation of the Director, Investigation Ehtesab Bureau and with regard to these items, the query has been made by the said Director from Secretary, Information and the relevant record pertaining to these eleven items was summoned from Secretary, Information. The appellant contended that this letter is sufficient proof of the fact that almost dozen of cases are being cooked up against the appellant and in case he is arrested, it will tantamount to his humiliation and lowering down his prestige in the society. The appellant further contended that he is a senior Advocate of the Supreme Court and a member of legal fraternity besides he has been a bureaucrat of Grade 21. While referring to section 4 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 (hereinafter to be referred as the Ehtesab Bureau Act), the appellant submitted that in section 4(a) the word "accused" has been defined which reads as follows:-- ' .... 'accused' shall include a person in respect of whom there are reasonable grounds to believe that he is, or has been involved in the commission of any offence tribal under this Act and/or is subject to an investigation/inquiry by the Ehtesab Bureau or a concerned agency."
' The appellant then referred to section 27 of the aforesaid Act which is also reproduced below:-- "Power to arrest.--- (1) The Chairman shall have the power, at any stage of the investigation under this Act, to direct that the accused, if not already arrested, shall be arrested."
' The appellant further submitted that although the previous Chairman of the Ehtesab Bureau, Mr. Justice (Rtd.) Basharat Ahmed Shaikh, has retired but Sh. Masood Iqbal, Advocate employed as Deputy Chief Prosecutor in Ehtesab Bureau of Azad Jammu and Kashmir and the Investigating Officers of the Ehtesab Bureau have grudge and animosity against the appellant, so much so that Sh. Masood Iqbal has been giving public statements in newspapers, the clippings of which are part of file and he has been dubbing the appellant as the most corrupt and dishonest person. The said Deputy Chief Prosecutor in his statements has categorically stated that the appellant in order to save his skin from the offences which he has committed, is making counter-allegations against the Ehtesab Bureau. The appellant thus, contended that he apprehends serious threats of his arrest and the respondents with their mala fide intents and purposes want to humiliate him by cooking up false cases against him and if he is not granted the concession of pre-arrest omnibus bail, he will be arrested at any time. The appellant in support of his contentions relied upon the cases reported as Mujahid Hussain Naqvi v. Director/Deputy Director Anti-Corruption and 4 others 2001YLR 2642, Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256, Maulana Abdul Sattar Khan Niazi v.
The State PLD 1974 Lah. 324 and Anjum Nisar Mir v. The State 1994 PCr.LJ 2021.
4. Controverting the arguments raised by the appellant, Mr. S.A. Mehmood Saddozai, the learned Chief Prosecutor, Ehtesab Bureau, submitted that in the memo. Of appeal of the appellant has expressed his animosity and grudge existing between him and previous Chairman of Ehtesab Bureau, Mr. Justice (Rtd.) Basharat Ahmed Shaikh, who since then has retired and none of the other functionaries of the Ehtesab Bureau have any ulterior motive or grudge to implicate the appellant in false cases. However, there are some cases which are under investigation/ inquiry in the Ehtesab Bureau against the appellant but at this stage no case has been registered against the appellant, therefore, the appeal having become infructuous is liable to be dismissed. The learned counsel further contended that the language used by the appellant in his memo. Of appeal is highly contemptuous and abusive which needs a strong action against the appellant for ptoceeding against him for professional misconduct and initiating contempt of Court proceedings. The learned counsel contended that the appellant has impleaded the learned Chief Justice of the High Court as respondent No,7 in the memo. Of appeal which is a unique example in the judicial history that the learned Chief Justice was impleaded as a party. In service matters no doubt there is a provision that the authority, which passes certain orders which adversely affect a civil servant, may be impleaded as a party but in any other cause, there is no example of impleading the learned Chief Justice or any other learned Judge as a party in the proceedings. This act of the appellant, according to the learned counsel for respondents, also amounts to professional misconduct and contempt of Court. The learned counsel also referred to para. No,10 of the judgment of this Court titled Mujahid Hussain Naqvi v. Director, Anti-Corruption and others 2001 YLR 2642 wherein by dismissing the petition for leave to appeal, it was observed in a following manner:- "Before parting with the judgment, I cannot close my eyes to the fact that the petitioner in his petition for leave to appeal as well as in the application for condonation of delay has employed a language which, on the face of it, appears to be scandalous, abusive and highly objectionable by highlighting the fact that he had strained relations with the Chairman, Ehtesab Bureau, respondent No,4, who happens to be the respectable retired Judge of the apex Court. The language used in drafting the petition for leave to appeal is unbecoming of a senior Advocate of the Supreme Court.
After all the decency and -etiquettes demand that a due respect should be shown even to one's opponents and particularly to the Judges of the superior judiciary whether they are in service or out of it. When during the arguments the petitioner was confronted with the language used by him in drafting the petition he for sometime tried to justify his action but ultimately tendered apology to be careful in future. Such sort of language which has been employed by the petitioner in drafting the petition for leave to appeal cannot be allowed to be repeated in future. Indeed such a practice is highly undesirable and is to be deprecated. Therefore, a warning is given to the petitioner that in future he would be careful while drafting his petitions in a scandalous and contemptuous manner, otherwise the law will take its own course."
' The learned counsel for respondents in support of his contentions placed reliance on a case reported as Abdul Rahim Zubair Butt v. Azad Jammu and Kashmir High Court and 7 others 2002 SCR 455. He also contended that bail before arrest can be granted to an accused under section 498, Cr.P.C. When a case is registered against such person. Since no case is registered against the appellant, therefore, the bail before arrest particularly the question of pre-arrest omnibus bail does not arise.
5. After hearing the respective submissions of the learned counsel for the parties and perusal of record, it may be stated that there are some press statements placed on the record of this Court as Annexures "PB" and "PC" from pages 31 to 34, which are not denied by the learned Chief Prosecutor, Ehtesab Bureau in which the Deputy Chief Prosecutor has stated that the appellant is a corrupt man against whom number of complaints are pending investigation/inquiry before the Ehtesab Bureau. The appellant was allowed pre-arrest omnibus bail by the High Court and it was essential for the High Court that it should have confirmed or rejected the bail in the light of material collected during the investigation against the appellant but this was not done and without touching the merits of the case, he was declined the confirmation of pre-arrest omnibus bail merely on the ground that the Chairman, Ehtesab Bureau had proceeded on leave. We at this stage cannot pre-empt the view of the High Court. It is firstly to be decided by the High Court as to whether on merits the appellant deserves the concession of pre-arrest omnibus bail in the light of material collected by the Investigating Agency of the Ehtesab Bureau.
6. The appellant in para. No,6 of his memo. Of appeal has alleged in a following manner:-- "That in the meanwhile an incident of contempt of Court of the learned Judge of Shariat Court, Justice Hussain Mazhar Kaleem, cropped up, resulting in conviction of Registrar Shariat Court of Azad Jammu and Kashmir, Mr. Habib-ur-Rehman Shah who challenged his conviction through a writ petition before the High Court of Judicature of Azad Jammu and Kashmir. The Division Bench of learned High Court thus, suspended the operation of the judgment and order of the Shariat Court in Writ Petition No,278 of 2002 on July 9, 2002, calling comments from the said Judge of the Shariat Court as well as other respondents. Similarly the Registrar of the Shariat Court moved an application to the learned Chief Justice of Shariat Court, the respondent No,7, to suspend the Shariat Court order of the learned Judge, dated 8-7-2002. The learned Chief Justice of the Shariat Court took cognizance of the matter and passed an order dated July 10, 2002, on the said application. Mr. Justice Hussain Mazhar Kaleem engaged the petitioner as his counsel before the High Court to file objection as well as in the Supreme Court to file two separate petitions for leave to appeal/revision petitions against the orders of the learned High Court passed on 9-7-2002 in Writ Petition No,278 of 2002 as well as in Criminal Miscellaneous No,121 of 2002. The petitioner thus having been appointed as counsel for Mr. Justice Hussain Mazhar Kaleem, the learned Judge of the Shariat Court having some personal animosity, enmity and vendetta with the learned Chief Justice of the Shariat Court, Mr. Justice Syed Manzoor Hussain Gillani, the respondent No,7, put in appearance in the writ proceedings as well as filed two petitions for leave to appeal/revision petitions before the learned Supreme Court of Azad Jammu and Kashmir. These petitions were taken up by the learned vacation Judge of the Supreme Court for hearing and the learned Judge in the Supreme Court was kind enough to issue notice for comments to the parties as well as his Lordship was pleased to forthwith suspend the further proceedings being carried into effect by the learned Chief Justice of Shariat Court, i,e, the respondent No,7, in Criminal File No,121 of 2002. Copies of application moved by Syed Habib-ur-Rehman Shah, Registrar, Shariat Court, in Criminal Miscellaneous No,121 of 2002 as well as the order passed by the learned Chief Justice of the Shariat Court on July 10, 2002, are also attached herewith and have been marked as Annexures "PK" and "PL". This was what catalytically annoyed the learned Chief Justice of Shariat Court already having decades old grudgeship and personal vendetta with the humble petitioner since the days of advocacy of his Lordship."
' The aforesaid para. Of the memo. Of appeal again shows that the appellant has used the most scandalous and dirtiest language which is unbecoming of a good lawyer but we were told that the learned Chief Justice of the High Court/Shariat Court by showing his greatness has forgiven the appellant by putting up a note in a case titled Ehtesab Bureau v. Mujahid Hussain Naqvi (Criminal Revision No,107 of 2002, decided on 4-6-2003), which is reproduced below:-- "I respectfully agree with the proposed judgment recorded by my learned brother Mr. Justice Sardar Muhammad Nawaz Khan, however, the petitioner during the course of arguments wanted me not to sit in the Bench on the ground that he has filed an appeal in the Supreme Court against the order passed by me on 2-8-2002 in his bail application in which he has impleaded me as a respondent in the case and used unbecoming and unwanted language. I had read the contents of the appeal and ignored as I believe in the principle of forgive and forget, though, he could be proceeded against under Contempt of Court Act and for Professional Misconduct."
7. In the light of what has been stated above, while accepting the appeal and setting aside the impugned judgment passed by the High Court on 2-8-2002, we remand the case to the High Court to resolve the proposition as to whether a sufficient material has been collected by the Investigating Agency of the Ehtesab Bureau connecting the accused-appellant with the commission of alleged offence and on the basis of said material the appellant is entitled to pre- arrest omnibus bail or not. Since the appellant in para. No,6 of his memo. Of appeal has levelled some serious allegations against the learned Chief Justice of the Shariat Court/High Court, therefore, it would be appropriate for the learned Chief Justice to entrust this case to.Some other learned Judge for hearing and disposal. This is even otherwise necessary for the reason that there should remain no slightest doubt in the mind of accused-appellant that his cause was decided by a Judge against whom he alleged some animosity and impleaded him as a party before the Supreme Court. Till the question of pre-arrest omnibus bail is decided by the High Court one way or the other, the accused-appellant shall remain on bail during the proceedings before the High Court.