' CH. IFTIKHAR HUSSAIN, J.---Petitioner-complainant Muhammad Yousaf Ojla, Senior Civil Judge, Sialkot presently posted as Additional District and Sessions Judge, Faisalabad through the petition bearing Crl. Misc. No.3264-BC of 2004 has sought for setting aside of the orders dated 29-1-2004, 10-4-2004 and 24-4-2004 recorded by Syed Iftikhar Hussain Shah, learned Judge Anti-Terrorism Court-I, Gujranwala and cancellation of bail extended to respondents Nos.1 to 17 in case F.I.R. No.237 dated 25-7-2003 under sections 302/319/322/324/337-F(iii)/342/353/109/148/149, P.P.C. And sections 6/7 of the.Anti-Terrorism Act, 1997 registered with Police Station Civil Lines, Sialkot.
2. Petitioners Raja Muhammad Mushtaq and Ghulam Sarwar vide two separate applications bearing Crl. Misc. No.1548-B of 2004 and Crl.
' Msic. No.4163-B of 2004 respectively have sought for post-arrest bail in the said case.
3. As all the three petitions have arisen out of one and the same case, hence these are being disposed of by this single judgment.
4. Briefly the facts relevant for the disposal of these petitions are that the aforesaid case was registered on the statement of Muhammad Yousaf Ojla, learned Senior Civil Judge, Sialkot.
5. He has disclosed therein that on the said date i.e. 25-7-2003 at about 10-30 a.m. The District and Sessions Judge, Sialkot along with Civil Judges Judicial Magistrates Saghir Anwar, Saeed Rafique, Muhammad Naeem Sheikh, Shehr Yar Bukhari, Rai Muhammad Naeem, Abdul Rehman, Mailk Tahir Mehmood, Asif Mumtaz Cheema, Javed Iqbal Warraich and Shahid Munir Ranjha and Pervaiz Iqbal Butt and Sabtain Kazmi, Judicial Special Magistrates went to the District Jail, Sialkot to listen the complaints of the prisoners. The District and Sessions Judge took these Civil Judges and Magistrates with him as on that date the local lawyers were not appearing in the Courts due to the death of Malik Khalid Mehmood, Advocate. The District and Sessions Judge and his companion Judges and Magistrates after attending the complaints of the inmates of the jail were coming out of the ladies barrack. The District and Sessions Judge was ahead than all of them. The rest of the Judges were inside the barrack. All of the sudden five persons whose names were known later on as Muhammad Shahbaz Butt, Ijaz Ahmad Butt son of Sarfraz Ahmad, Caste Kashmiri resident of Bin Phatak, Ishfaq alias Ishaq son of Muhammad Sarwar, caste Arian r/o Bin Phatak, Muhammad Rafique alias Kona son of Zahoor Hussain, caste Teli, resident of Kotli Telian and Munir Ahmad alias Muniri son of Nazir Ahmad, caste Jatt, resident of Talwaran Mughlan, armed with .30 bore pistol attacked the_District and Sessions Judge in order kill him. They fired at him but the fires missed. He then moved towards the office of the Superintendent of the Jail.
' He (complainant) along with Abdul Rehman and Rai Muhammad Naeem entered Barrack No.8.
The accused made the rest of the Judges hostages in the ladies barrack. They there contacted the DPO on mobile phone. The police force reached there after a short while. The police started negotiations with the accused but the same failed. The police, thereafter started action. The firing when stopped, he and his companions came out of Barrack No.8. He learnt that Saghir Anwar, Asif Mumtaz Cheema and Shahid Munir Ranjha, Civil Judges had been killed while Shehr Yar Bokhari, Javed Iqbal Warraich and Sabtain Raza Kazmi injured. The accused were also killed. The incident was the result of collusion/conspiracy between the accused and the jail officials :as without their assistance or abetment arms could not be supplied to the accused inside the jail. He with the help of the police had removed the deceased and injured Judges to the DHQ, Hospital, Sialkot.
6. A team of police officers had investigated the case. The police submitted incomplete challan in the said Court. In Column No.2 of the same, a jail official namely Zulfiqar Ali Virk was shown as the absconder. The names of respondents Nos.1 to 17 (in Crl. Misc. No.3264-BC of 2004) did not figure in the same.
7. The learned Judge of the aforesaid Court time and again asked the police to submit complete challan. The S.H.O. Concerned, however, did not comply with his such directions. He ultimately gave the last opportunity to him to remove the objection and submit complete challan in the Court on 19-1-2004.
8. The position but did remain the same even on 19-1-2004. The complete challan was not submitted in the Court. The S.H.O. Concerned even did not offer any satisfactory explanation in that behalf.
9. In such situation, the learned Judge seized of the case, took the cognizance of the offence and summoned respondents Nos.1 to 15 under sections 302/149, P.P.C. Observing that they in view of the sufficient incriminating material available on the record are prima facie connected with the said offence. It was vide his order dated 19-1-2004. He ordered to issue non-bailable warrants of arrest against them for 29-1-2004.
10. He with the same also observed that respondents Nos.16 and 17 (Dr. Muhammad Firdos Shah, Ex.
Medical Superintendent, Allama Iqbal Memorial, Hospital, Sialkot and Dr. Sajid Hussain) have been found to be negligent in the performance of their duty specially in the treatment of deceased Judge Shehr Yar Bukhari and his transportation to the Punjab Institute of Cardiology, Lahore and so the offence under section 319, P.P.C. Is made out against them. He, however, ordered to issue bailable warrants of arrest in the sum of Rs.50,000 against them for the said date I . e . 29-1-2004
11. On 29-1-2004, these doctors appeared before the Court. They did not apply for bail in a regular way. However, the learned Judge seized of the case directed them to furnish bail bonds in the sum of Rs.2,00,000 each with one surety each in the like amount to his satisfaction.
12. As regards the remaining respondents in the petition (Crl. Misc. No.3264-BC of 2004), they did not appear there despite repeatedly issuance of process against them. They, however, ultimately applied for pre-arrest bail in the case through their separate applications. In all six applications were moved by them for the purpose. The aforesaid absconder jail official namely Zulfiqar Ali Virk also moved for such relief. All these applications came up for hearing together before the said Court on 10-4-2004. It vide the order of that date accepted the applications of all of them except that of Zulfiqar Ali Virk, as per the view expressed in the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore), observing that they were summoned under section 204, Cr.P.C. And so were required to be dealt with in accordance with the provision of section 91 Cr.P.C. It with such observation has confirmed the ad-interim pre-arrest bail already allowed to them i.e. Petitioners Nos.1 to 15.
13. The petition of Zulfiqar Ali Virk was dismissed mainly on the ground that there is sufficient incriminating material/evidence available on the record against him and that he had remained fugitive from law.
14. It may be mentioned here that two officials of the jail namely Raja Muhammad Mushtaq and Ghulam Sarwar earlier to that had applied separately for post-arrest bail before that Court. Their applications were dismissed by the learned Court vide the order dated 19-1-2004.
15. It is worth-mentioning here that the petitioner-complainant (in Crl. Misc. No.3264-BC of 2004) had filed application to the said Court for setting aside of the order dated 29-1-2004 requiring respondents Nos.16 and 17 to furnish bail bonds praying therein for cancellation of the bail granted to them and taking them into custody. The said application was turned down by the learned Court vide it's ordered recorded on 24-4-2004.
16. The complainant feeling himself dissatisfied with the order of grant of pre-arrest bail to respondents Nos.1 to 15 in the case and requiring respondents Nos.16 and 17 to furnish bail bonds and refusing to cancel their bail has come to this Court with the above mentioned petition (Crl.
Misc. No.3264-BC of 2004).
17. It has been contended on his behalf that Anti-Terrorism Court's power to release an accused on bail is always subject to certain conditions; that such aspect of the matter has not been kept in view adequately by the learned Judge, Anti-Terrorism Court-I, Gujranawala; that treating the case of respondents Nos. I to 17 under section 91, Cr.P.C. By requiring them to furnish bail bonds was not correct approach to the proposition; that respondents Nos. 1 to 15 as per the evidence available on the record were responsible for the operation in which four learned Civil Judges were done to death and some were injured and so they equally were responsible for their Qatal-e-Amd and attempt on the lives of other persons; that respondent No.1 had commanded the operation in an imprudent way and without due care and caution rendering the lives of the deceased Judges and others to great risk; that he had not carried out the operation in the way that the lives of the deceased Judges could be saved and had it not been so the loss of lives could not be so colossal and the learned Anti-Terrorism Court has erroneously overlooked. Such aspect of the matter; that respondents Nos.16 and 17 had been guilty of criminal negligence in providing necessary treatment to the injured persons especially deceased Civil Judge Shehr Yar Bukhari as they neither had made arrangement of necessary medicines nor the said deceased Civil. Judge was transported to Punjab Institute of Cardiology, Lahore in a suitable vehicle and it even was without any attendant during the journey from Sialkot to Lahore and so they too were equally responsible for the murder of the said deceased Judge; that the reliance of the learned Anti-Terrorism Court upon the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore) was not apt as that case essentially was a complaint and in the same process for appearance of the accused was issued under section 204, Cr.P.C. While in the instant case the learned Anti-Terrorism Court had taken cognizance of the offence under section 190(1)(b), Cr.P.C. On the report in writing of facts constituting the offence made by the police officer while it was not the position in the afore- referred case; and that respondents Nos.1 to 3 in one way or the other had put pressure on the complainant and the heirs of some of the deceased Judges to not to pursue the case against them.
18. It has been requested that the order dated 29-1-2004 requiring respondents Nos.16 and 17 to furnish bail bonds and the acceptance of the bonds submitted by them in consequence thereof and the order dated 24-4-2004 refusing to cancel their bail and the order dated 10-4-2004 confirming the interim pre-arrest bail granted to respondents Nos.1 to 15 may be set aside and the bail so extended to them may be cancelled.
19. As against the same, the learned counsel for respondents Nos.1 to 3 and 16 has opposed the petition on the ground that the said application (Crl. Misc. No.3264-BC of 2004) brought by the complainant is not maintainable as no provision of cancellation of bail granted by the learned Anti-Terrorism Court to accused is therein the Act while the application of section 497, Cr.P.C. In the same has expressly been excluded by the relevant provision relating to bail in the same i.e. 21-D; that although the report in writing of the facts constituting the offence was made by the police officer concerned but the order of summoning of these respondents/accused essentially was under section 204, Cr.P.C. And in this regard the reference has been made to the case of Baghunath Puri and others v. Emperor (AIR 1932 Patna 72); that in these circumstances, they rightly were required to submit bail bonds in view of the case of Mazhar Hussain Shah v. The. State (1986 PCr.LJ 2359 Lahore); that the said application is not in a proper form as all the above said orders of the learned Anti-Terrorism Court have been challenged in the same while these should have been separately; and that these respondents have exercised all care and caution in the conduct of the operation and there was no mens rea or criminal intention on their part in the matter and hence, they could not be saddled with the responsibility of the murder of the deceased Judges and the injuries to others.
20. On behalf of respondents Nos.4 to 15, it has been contended that they had performed their duty in the conduct of the operation on the command of their superior police officers present at the spot and it was all with bona fide and with due care and caution and not at all negligently; and that they had no criminal intent at all in the matter.
21. On behalf of respondent No.17, it has been contended that he is a doctor and had no animus at all towards the deceased Civil Judge Shehr Yar Bukhari or any other person in the matter; that he did not commit any negligence in the treatment and look after of the said deceased Civil Judge in any manner; that he with best of his ability and what was available to him by the government in the hospital had looked after the said Civil Judge and the injured persons; and that his involvement in the case was an emotional approach in the matter by the persons concerned.
22. On behalf of petitioner Raja Muhammad Mushtaq, it has been contended that in fact the police officers in the command of the situation at the spot were responsible for the murder of the deceased Judges and the injuries to others; that operation was conducted in the most unskilled and reckless manner that valuable lives of the deceased Judges had been lost and many were seriously wounded; that there was no collusion between him and the accused who made the Judges hostages and fired upon the learned District and Sessions Judge; and that there is no incriminating evidence on the record to connect him with the crime alleged.
23. Almost similar submissions were made on behalf of petitioner Ghulam Sarwar.
24. Learned Additional Advocate-General has submitted that the operation conducted by respondents Nos.1 to 15 was absolutely uncalled for and in utter disregard of the instruction by the concerned higher authorities; that the operation was conducted in the most imprudent way and it was devoid of professional ability resulting into the loss of valuable lives of the Civil Judges and injuries to other and even the accused who had made the Judges hostages had been killed in the same; that in fact the learned Anti-Terrorism Court had taken cognizance of the matter on a police report and so it was under section 190(1)(b), Cr.P.C. And, therefore, the order of summoning of respondents Nos.1 to 17 could in no way be said to be one under section 204, Cr.P.C. And, thus the asking these respondents to submit bail bonds was not at all in accord with the spirit of the law on the subject; and that in such circumstances, the reliance of the learned Anti-Terrorism Court upon the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore) was not at all correct; and that it required that the applications for pre-arrest bail of respondents Nos.1 to 15 may be decided on the basis of the evidence on the record and respondents Nos.16 and 17 dealt with in accordance with law but it was not done and instead they were released simply on furnishing the bail bonds.
25. He has submitted that Raja Muhammad Mushtaq and Ghulam Sarwar, the jail officials have rightly been 'refused the relief of bail as their conspiracy with the accused who made the Judges hostages is evident from the overwhelming incriminating material available on the record.
26. We have carefully considered the arguments advanced from all the sides and record available perused.
27. The real controversy in relation to the petition (Crl. Misc. No.3264-BC of 2004) of the complainant is that whether the dealing with the case of respondents Nos.1 to 17 under section 91 Cr.P.C. Or requiring them to submit bail bonds was correct in law. The answer to such question will determine the fate of the said application.
28. The Anti-Terrorism Act, 1997 is a special enactment. It has it's meanings and the spirit of the provisions. It is needless to mention here that a special enactment needs to be taken in perspective of it's own object. Any departure from same can be negation of it's object and spirit.
29. To resolve the above controversy, to have look on the provision conferring power of bail on Anti- Terrorism Court is necessary.
30. Section 21-D of the same deals with power to grant bail. The same provides as under:-- "Notwithstanding the provisions of sections 439, 491, 496, 497, 498, 498-A and 561-A of the Code, no Court, other than an Anti-Terrorism Court; a High Court or the Supreme Court of Pakistan, shall have the power or jurisdiction to grant bail to or otherwise release an accused person in a case triable by an Anti-Terrorism Court."
31. The said provision shows that an Anti-Terrorism Court, a High Court or the Supreme Court of Pakistan only have the jurisdiction to grant bail or release an accused person in a case triable by an Anti-Terrorism Court.
32. Subsection (3) of the same shows exercise of such powers is subject to condition (a) to (d) enumerated in the same. It's subsection (4) also describes the considerations to be regarded in exercise of such powers. Subsection (5) also enumerates that Court while allowing bail can impose conditions as enumerated in (a) and (b) of the same. So, it is right to say that the power of Anti- Terrorism Court to release on bail is subject to certain conditions. However, no much discussion is required to be made on this aspect of the matter as it is clear from the above position that applications for pre-arrest bail of respondents Nos.1 to 15 were never disposed of on merit or taking into the consideration the factual aspects but it simply was on the above mentioned legal plane.
33. Before adverting to the above controversy, we would also like to attend to the contention raised on behalf of respondents Nos. 1 to 3 and 16 that -the said application is not maintainable as the application of section 497, Cr.P.C. Expressly stood excluded by section 21-D of the Act and that no remedy for cancellation of bail stands provided therein.
34. We disagree with such contention. No doubt, there is no express provisions of cancellation of bail extended to an accused of offence under the Act but it is well-settled principle in law that a Court which has power to grant bail to an accused is empowered to recall or cancel C same. In this regard section 21 of the General Clauses Act 1997, can be referred with advantage. The same reads as under:- "Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.
Where by any 'Central Act] or Regulation, a power to [issue notifications], order, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any Jnotificationl, orders, rules or bye-laws so issued]"
35. The above referred provision make it abundantly clear that where any Act or provision confer power to make order, same essentially includes power to add to, amend, vary and rescind. In this regard the case of Bashir Khan v. District Magistrate and the Superintendent of Police, Gujrat (PLD 1957 (W.P.) Lahore 892), though by a Single Bench but is apt on similar proposition. In the same, the view expressed by B.Z. Kaikous-J. As he then was that "Authority which could pass an order is entitled to vary, amend and to rescind that order" is quite relevant. We have received that view as an interpretation of the above referred legal proposition. It perhaps, therefore, is not E correct to say that there is no scope of cancellation of bail extended to an accused by Anti-Terrorism Court. The argument, therefore, repelled.
36. The other objection about the form of that petition is also without force. It has been found that the petitioner/complainant had sought for cancellation of bail extended to respondents Nos.1 to 17 by two different orders of the learned Anti-Terrorism Court. He has appended with his petition the certified copies of those orders. He has also appended the other necessary documents like the certified copy of the F.I.R. And the order dated 19-1-2004 recorded by the Court. We feel that only this much was required and nothing more. These documents can serve the present purpose.
37. This is not bad in law to challenge the vires of those orders by way of that single petition. Even otherwise, law favours decisions on merits and not technicalities. The contention, therefore, is repelled.
38. We now revert back to the real controversy requiring determination in the complainant's aforesaid application. The learned Judge, Anti-Terrorism Court had proceeded on the bail petitions of respondents Nos.1 to 15 and with regard to the case of respondents Nos.16 and 17 on the premises that his order dated 19-1-2004 of summoning them is essentially the one under section 204, Cr.P.C. He has reiterated his such view in clear words in his order dated 24-4-2004 requiring to cancel the bail granted to respondents Nos.16 and 17. He has expressed himself in that regard in the following way: "They were summoned by this Court under section 204, Cr.P.C. And they were required to be dealt with under section 91 Cr.P.C., in the light of the case-law laid down in 1986 PCr.LJ Lahore 2359".
39. He in this regard has considered the afdre-referred case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore) to be aptly applicable to not only to the case of these respondents but also the other respondents i.e. 1 to 15.
40. This shows that the learned Judge, Anti-Terrorism Court was of the mind that its order dated 19- 1-2004 of summoning these respondents as accused was under section 204, Cr.P.C. This but was not the result of correct comprehension of the law on the subject.
41. Section 204, Cr.P.C. Figures in Chapter XVII. The title of the same is: "OF THE COMMENCEMENT OF PROCEEDINGS BEFORE ICOURTS1"
42. The only other section in that Chapter is section 205. The same deals with question of dispensation with personal attendance of accused. However, the same is not relevant to be discussed here anymore being not our subject. The preceding to Chapter XVII is relating to complaints i.e. Chapter XVI. It comprises of sections 200 to 203, Cr.P.C. The same, as is obvious from it's title deals with complaints.
43. Section 204, Cr.P.C. Deals with question of issuance of process to accused when a Court taking cognizance of an offence in a complaint case is of the opinion that there is sufficient ground for proceedings further with matter. This is no way deals with an offence the cognizance of which is taken on a report made by a police officer of facts constituting an offence.
44. It is to be noted here that the case against these respondents had proceeded on the report made by the police officer concerned. The cognizance of such an offence is taken by Magistrate under section 190, Cr.P.C. There is no cavil to the proposition that an Anti-Terrorism Court has powers of Court of Magistrate as well as that of Sessions. Subsection (1)(b) suggests that any Magistrate may take cognizance of an offence upon report in writing of such facts made by police officer. There was no complaint before the Anti-Terrorism Court in the matter. The learned Judge Anti-Terrorism Court had taken cognizance of the offence on the incomplete challan submitted by the police officer concerned. It, thus was the one under section 190(1)(b), Cr.P.C. And not under section 204, Cr.P.C. So, the view of the learned Judge, Anti-Terrorism Court that he had acted under section 204, Cr.P.C. While issuing process to these respondents was fallacious or wrong. Here we would refer to the case of Safdar Ali v. Zafar Iqbal and others (2002 SCM R 63). It has been held therein by the apex Court that a Magistrate can take cognizance of an offence, even in case of negative report submitted by police that accusation is baseless and no case is made out against delinquents. The same is taking of cognizance of an offence under section 190, Cr.P.C. The view of our's is further forfeited by the case of Azmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687). In the same, the apex Court had dealt with scope of sections 204 and 205, Cr.P.C. In relation to the complaint case. It has been held therein that where the Court had recorded statement under section 200, Cr.P.C. And after finding prima facie case has taken cognizance of the matter, it was under Chapter XVII, Cr.P.C. And then sections 204 and 205, Cr.P.C. Would come into operation. It is also to be noted here that the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore) was a complaint. It so very clearly reflects from the same. So, the learned Judge, Anti-Terrorism Court has erred in holding that he took cognizance of the matter under section 204, Cr.P.C. In issuing process to these respondents.
45. It is to be mentioned here that the learned counsel for respondents Nos.1 to 3 and 16 had referred to the case or Baghunath Puri and others v. Emperor (AIR 1932 Patna 72) in support of his submission on the above aspect. No doubt in the same, it has been held that a Magistrate is empowered under section 190(a) and (b) to issue process for compelling the appearance of the accused on the perusal of the police report submitted to him under section 173, Cr.P.C. Declaring the case to be false and he can also do so after perusal of police report submitted to him of an inquiry under section 202, Cr.P.C. Of complaint case and in both the cases he will act under section 204, Cr.P.C. But also with respect the same cannot be preferred to the above referred latest in time view of the apex Court in the case of Azmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687).
46. With the same, we also find the reliance of the learned Judge Anti-Terrorism Court upon the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359 Lahore) in requiring respondents Nos.16 and 17 to furnish bail bonds and confirming the interim pre-arrest bail to the remaining respondents on the premises that their case is required to be dealt under section 91, Cr.P.C. Was not correct. The same, therefore, is not sustainable in law. He, therefore, has not only erred in confirming the interim pre-arrest bail granted to respondents Nos.1 to 15 but also asking respondents Nos.16 and 17 to furnish bail bonds and dismissing the complainant's application for setting of his order dated 29-1-2004 in that regard.
47. We. Therefore, accept the petition (Crl. Misc. No.3264-BC of 2004) of the complainant and set aside the order dated 29-1-2004 to the extent of requiring respondents Nos.16 and 17 to furnish bail bonds and the order dated 24-4-2004 and accept the application of the petitioners/complainants to cancel their bail and declare the acceptance of their such bonds to be invalid and also set aside the order dated 10-4-2004 passed on the pre-arrest bail petitions of respondents Nos.1 to 15.
48. The applications of respondents Nos.1 to 15 required determination on merits of the case in accordance with law but those were dealt with only on the basis of the above discussed legal plane and not on factual and merits.
49. We are here not scare of deciding those applications of their's on merits but we feel earnestly that the same may be dealt with on merits by the Court of first instance. So, that channel of law may remain straight and smooth and then higher Court may he approached by anybody concerned, in case of need.
50.
50. The applications of respondents Nos. 1 to 15, thus as stood on 10-4-2004, shall be deemed to be pending before the learned Anti-Terrorism Court-I, Gujranwala, which shall decide the same afresh after hearing the parties in the light of the observation made above strictly in accordance with law expeditiously under intimation to the Deputy Registrar (Judicial) of this Court Respondents Nos.1 to 15 shall appear before it on 18-10-2004 without fail. The copy of this order be dispatched to it within three years from today positively. It is here made clear that no unnecessary adjournment shall be allowed to anyone at all.
51. As regards respondents Nos.16 and 17, they did not file any regular bail application before the learned Anti-Terrorism Court. It, therefore, shall deal with their matter in accordance with law. They shall also appear before that Court on the said date.
52. In view of the above position, we have not considered it appropriate to discuss the other contentions raised on behalf of the parties as regards the factual aspects of the case or the merits.
53. As regards Raja Mushtaq petitioner in (Crl. Misc. No.1548-B of 2004), he at the relevant time was posted as an Assistant Superintendent in that jail. There is no denying the fact that he was in charge of the football factory there. The above mentioned accused, admittedly had made the deceased Judges and other persons as hostages there. There is also no denying the fact that the arms and ammunition was smuggled/supplied to them inside the jail. The same, ultimately was used in the Qatl-e-Amd of the deceased Judges and attempt on the lives of others. It could not be done without the collusion, connivance an conspiracy of the jail officials concerned.
54. There are also on the police record the statements of the injured Judges namely Javed Iqbal Warraich, Sabtain Abid and Muhammad Naeem Sheikh and others persons implicating him with the crime alleged.
55. He as per the statement on the record has sabotaged the negotiations between the accused and Mr. Sarfraz Ahmad Mufti, I.G. Prisons and due to his such act an unhappy episode had taken birth in the jail. The offence is really heinous in nature and the same is covered under the prohibitory clause of section 497(1), Cr.P.C. He, therefore, is not entitled to bail at this stage.
56. Similarly, petitioner Ghulam Sarwar, was an Assistant Superintendent in the jail at that time. The above type of evidence is also available against him on the record. He also on the basis of the same prima facie is connected with the alleged offence. We, therefore, do not find him too entitled to bail at this stage.
57. Their respective bail petitions (Crl. Misc. No.1548-B of 2004 and Crl. Misc. 4163-B of 2004) are, therefore, dismissed.
58. Before parting with this judgment, we may observe here with concern that it has been mentioned in the order dated 19-1-2004 of the learned Judge, Anti-Terrorism Court that despite his repeated directions the S.H.O. Concerned did not submit the complete challan in the Court. We here would make reference to the provision of section 37(a) of the Act. The same provides as under:- "Contempt of Court,--(a) An Anti-Terrorism Court shall have the power to punish with imprisonment for a term which may extend to six months and with fine any person who:
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order or direction of the Court.
59. The above referred subsection (a) gives powers to an Anti-Terrorism Court to punish any person which disobeys it's order or direction. It is strange that the learned Judge, Anti-Terrorism Court despite disobedience to his such orders by the S.H.O. Concerned did not took action against him and he overlooked that matter. This was an actionable lapse or wrong. The learned Judge now seized of the case at his option and wisdom may initiate action in that matter, if so deemed expedient or necessary.