MUHAMMAD AFZAL ZULLAH J.---This matter (Criminal Miscellaneous No. 4708/8-1978) has arisen under the following circumstances: Asghar Ali (petitioner in Criminal Miscellaneous No. 3267/B-78) and his four co-accused, Muhammad Yousaf Sial, Nawaz alias Munnoo, Barkat Ali and Muhammad Bashir (hereinafter referred to as the respon--dents) were named in a case under section 376/382, P.P.C. Registered with Police Station, Tibbi, Lahore on 24th February 1978, at the instance of one Mst. Maroof alias Fauzia.
2. Case disclosed in the F. I. R., briefly stated is that Mst. Maroof alias Fauzia hired the rickshaw of Nawaz respondent from Badami Bagh Bus Stand for going to Data Darbar. Nawaz respondent instead of taking the rickshaw to Data Darbar took her to a house. Respondent Muhammad Yousaf Sial was already present there. Both committed rape on her in that house. Respondent Muhammad Yousaf had also removed a watch of Camy make, of the prosecutrix on the pretext that respondent Nawaz would have her a new watch instead. Respondent Nawaz then took the prosecutrix in the same rickshaw towards University Campus. On the way he came across Asghar Ali who was also accommodated in the rickshaw. She was taken to a village situate near Multan Road Octroi Post.
Respondents Barkat Ali and Muhammad Bashir were found in the village. Asghar Ali and respondents Barkat Ali, Muhammad Bashir and Nawaz, brought her to a house outside Bhati Gate and subjected her to rape. She being a stranger, could not raise hue and cry.
3. On the rejection of bail application of Muhammad Yousaf Sial respondent, by the Additional Sessions Judge, Lahore on 10th August 1978, he moved this Court vide Criminal Miscellaneous No. 3239/B-78, for bail on 20th August 1978. This was disposed of by one of us (Khalil-ur--Rehman, J) vide order dated 16th September 1978. He was ordered to be released on bail. Asghar Ali then filed Criminal Miscellaneous No. 3267/B-78 on 24th August 1978. It seems that the learned counsel in that case did not take due care to find out if application of Muhammad Yousaf Sial respondent in the same case had already been filed on 20th August 1978, and notice issued on 23rd August 1978.
This application was placed before a different Bench (Muhammad Afzal Zullah, J) who, on 27th August 1978 after considering the merits of the case, dismissed it in limine. It would be seen that this application had already been dismissed when respondent Muhammad Yousaf Sial was allowed bail on 16th September 1978. The fact that bail application of Asghar Ali had already been dismissed by Muhammad Afzal Zullah, J. On 27th August 1978, was not brought to the notice of Khalilur Rehman, J. Nawa2 respondent moved Criminal Miscellaneous No. 3654/B-78 on 26t~ September 1978. This went before Khalil ur Rehman. J. Who relying on his earlier order dated 16th September 1978, in Criminal Miscellaneous No. 3239/B-78, allowed bail to this accused also.
4. Asghar Ali then moved a second application (Criminal Miscellaneous No. 4642/B-78). This time it was disclosed that his previous application, viz. Criminal Miscellaneous No 3267/B-78 had already beet dismissed by Muhammad Afzal Zullah, J. Even this matter was no placed before him (Muhammad Afzal Zullah, J) and instead was put up before Khalil-ur-Rehman, J on 18th December 1978. It was noticed that Criminal Miscellaneous No. 3267/B-78 by the same petitioner was dismissed by Muhammad Afzal Zullah, J. Therefore, the petition way ordered to be placed before him. The matter then came up before Muhammad Afzal Zullah, J on 20th December, 1978, who passed, the following order :- "Mr. Muhammad Siddiq Garwah, Advocate.
This case is covered by a Division Bench ruling of this Court in the case of Abdul Ghafoor alias Ghafoori v. The State (PLD 1975 Lah. 754). It is strange that despite the said ruling having been reported in 1975 and having resolved the controversy with regard to the multiple appli--cations in the High Court in the same case, learned counsel conducting the application (Criminal Miscellaneous No. 3239/B-78) thought it fit not to inform the Court that another application for bail of another accused in the same case had been dismissed by the High Court nearly three weeks earlier. A possibility that the learned counsel did not know about the dismissal of the other application by the High Court cannot be excluded. However, the question would arise whether all the necessary enquiries as are visualized in the case of Abdul Ghafoor were made by the learned counsel and his client. Be that as it may, the fact remains that co-accused of the petitioner, one of whom is a Police Head Constable and has it is stated now been promoted as an A.S.I., was released on bail by another Bench of this Court. There is a conflict of judgment on the question of bail in the same case in the order dated 16th September, 1978 in Criminal Miscellaneous No. 3239/B-78 and the order dated 27th August 1978, in Criminal Miscellaneous No. 3267/B-78. It is necessary to resolve the conflict and while so doing, either the petitioner should be released on bail or his co-accused, who are already on bail, should be asked to show cause why their bail should not be cancelled. For these reasons this petition is admitted to hearing. Notice for a date within the first week after the Winter Vacations.
(Sd.) M. A. Zullah, Judge Suo Motu
(2) For the foregoing reasons and in the interest of Justice it is necessary that notice for cancellation of bail should be issued to the co-accused of the petitioner. Notice is accordingly issued to Muhammad Yousaf Sial, Nawaz alias Mannu, Barkat Ali son of Wahab and Muhammad Bashir son of Aziz accused in this case. They shall all appear in person on the date of hearing to be fixed by the office.
(3) To be heard along with Cr. M. 4642/B-7g.
(4) As a conflict is required to be removed between the two orders relating to bail passed by two different Benches of this Court in the same case, the office should place this case before the learned Chief Justice for constituting a larger Bench.
(5) It may be mentioned that similar situation at an earlier occasion was resolved by constitution of a larger Bench. See Abdul Ghafoor alias Ghafoori v. The State.
(Sd.) M. A. Zullah, Judge."
5. The matter regarding suo moto notice for cancellation of bail to the respondents has been registered as Criminal Miscellaneous No. 4708/B-78. We proceed to dispose of the same.
6. It may be noticed at the outset that on 20th December, 1978 when Muhammad Afzal Zullah, J decided to issue suo motu notice to the res--pondents, he was given an impression that respondents Barkat Ali and Bashir had been admitted to bail. Their learned counsel has stated that the said two respondents were not aware of the registration of case against them. It was on the service of notices issued to them under order of the High Court dated 20th December 1978, that they learnt about the regis--tration of the case. They filed application for pre-arrest bail and were admitted to interim bail on 22nd March 1979, by a learned Additional Sessions Judge. The interim bail order was confirmed on 2nd May 1979. Learned counsel has further informed us that he had brought the fact to the notice of the learned Additional Sessions Judge dealing with the bail case that this Bench is seized of the same matter and notwithstanding the -same the learned Judge confirmed bail of the two respondents. Irrespec--tive of the position as it obtained on 20th December, 1978 the fact of the matter is that the two respondents are on bail under orders of the Additional Sessions Judge, Lahore dated 2nd May 1979, who proceeded to pass the same despite having been informed about the pendency of the proceedings before this Bench.
7. This Court in Abdul Ghafoor v. The State under somewhat similar circumstances posed following questions :- "(i) Whether it was necessary for the counsel who filed the petition (Criminal Miscellaneous No. 3783/B-73) to mention that earlier petition for bail on ground of delay filed by the other accused had been dismissed by this Court and if he initially did not know about this fact, whether it was not necessary for him or his client to make enquiries in that behalf and give a note thereof on the petition ;
(ii) What is the effect of the failure of accused or his counsel to give necessary information with regard to the disposal of the earlier petition on,--
(a) Bail granted to accused ;
(b) Approach by the learned Additional Sessions Judge in sub--sequent petition whether he is to follow the earlier decision by the High Court giving in the case of same accused--petitioner or the latter decision by a different Bench of the High Court, but in a petition filed by a different accused ;
(c) The present petition.
(iii) When one learned Judge of this Court gives decision on the question of bail in the- same case without knowledge of the other and both the decisions prima facie appear to be conflicting which one is to be followed in subsequent bail petition(s) in the same case ;
(iv) What is the effect of the ruling of the Supreme Court in the matter of successive bail petitions filed in High Court requiring the same to be heard by the same Bench, if available, which dismissed the earlier one on :- (a)Petition by the other accused in the same case ; (b)Petition for cancellation of bail in the same case ; (c)Petition for bail /cancellation in the cross connected case, if any." and recorded the answer :- "It is regretfully put on record that there is a growing tendency to conceal the fact of dismissal of earlier bail petitions. We need not quote instances. There are so many. The litigants do not approach the Courts with clean hands. Where a petitioner does not approach the Court with clean hands, he is not entitled to the concession of bail and the discretion cannot be exercised in his favour. It is not difficult for a counsel to find out the truth as to whether an accused or co-accused had made any bail petition previously or not. Where a counsel makes a genuine effort to find out if the accused had previously moved bail petition and the litigant conceals it inten--tionally, the counsel is not to be blamed. Sometimes an accused succeeds in obtaining bail order from a different Bench by conceal--ment of dismissal of his earlier bail petition or bail petition moved by the co-accused. In order to avoid such situation, it has been held by the Supreme Court that when one Judge of High Court refused bail, the rule of propriety and harmony required that sub-- sequent applications made in the same case be referred to the same A Judge who had earlier refused bail. This can be achieved only when the Judge is informed about the other petition. We need no remind the Lawyers their status and duties towards their clients, opponents, Courts, and themselves. Lawyers are the "Custodians of Civilisation ; than which there can be no higher aim and no nobler duty". These words have been borrowed from the speech delivered by Mr. Justice Mugham, in Canada in or about the year 1967. Every one taking part in the administration of justice is engaged in a task of importance to the welfare of the community. Lawyer is trained to observe and weigh facts, and to learn their values. Maintenance of intellectual honesty is a matter of first importance. It is the duty of the lawyers to ascertain facts before putting up a case in a Court of law. The Code of honour of the Bar is at once its most cherished possession and the most valued safeguard of the public. In the discharge of his office, the Advocate has a duty to his client, a duty to his opponent, a duty to Court and a duty to himself. The whole foundation and structure of the administration of justice depends on mutual confidence of the Bench and the Bar. The life of one at the Bar who may not be trusted by the Court, must indeed be an unhappy one. Counsel may not know the law or he may be completely mistaken as to an interpretation of law. These are the things which can happen to anyone. But the Court is entitled to rely on him and consequently it is the duty of the counsel to draw the attention of the, Court to any ruling which is contrary to his contention.
Advocates duty as Officers of Court is to do nothing consciously by act or omission which might mislead Court. It is hardly necessary to point out that the duty of the counsel in this regard r5 in complete accord with the interest of his client and his own interest. A counsel should remember that he is incharge of the case ; he has to exercise his own judgment and discretion as to the conduct of the case ; no hope of immediate gain should lead him to depart from the traditions of the Bar. Members of the Bar belong to a great profession which has a far-reaching influence on the welfare of the country. Judges are appointed to administer justice. Without the help of counsel, they cannot succeed. Every member of the Bar is a helper in the administration of justice and he owes a duty not only to his client, but to the Court and that duty is fulfilled by his using of his power to bring before the Court the relevant facts and decisions to the end that a proper result may be obtained. If the members of the Bar act in the aforesaid manner, they would be fulfilling their duties to the clients, opponents, Courts and themselves."
With a view to avoid such like situations the following measures were highlighted
(i) Forwarding of copies of orders passed by this Court on every bail petition, whether for bail before arrest or after arrest, to the inquiry Magistrate/trial Court and the S. H. Q., Police Station concerned ;
(ii) The S. H. O. Placing a copy of that order on the Police file ;
(iii) The Inquiry Magistrate/Inquiry Court maintaining a separate file for each Police Station and placing the copies of the bail orders, in the file (during the investigation of the case) which is open to inspection by the counsel and after the challan is submitted in Court, placing the copies of, the bail orders on the judicial file ;
(iv) A separate register for each Sub-Division/Tehsil in the High Court for entry of every bail petition with result thereof, and the same being open to inspection by the counsel ;
(v) Counsel giving his own certificate on every petition connected with bail that the accused or the co-accused had not moved a bail petition earlier and other relevant information qua cancella-- tion of bail petition in the same and/or cross cases ; and
(vi) The above procedure/mechanism being applicable mutatis mutandis to bail proceedings before the Sessions and Additional Sessions Judges.
8. The rule laid down in Abdul Ghafoor's case, it is with respect pointed out, was to satisfy the intent and spirit of the rulings of the Supreme Court in Muhammad Khan v. Muhammad Aslam and 3 others (1971 SCMR 789), Faiz Ullah Khan v. Pir Mukamal Shah (PLD 1961 SC 34), Farid v. Ghulam Hassan and others (1968 SCMR 924), Province of East Pakistan v. Dr. Aziz-ul-Islam (PLD 1963 SC 296). We may add that views expressed by the Supreme Court in Muhammad Khan v. Sanaullah (PLD 1971 SC 324) (which was not brought to the notice of the Bench dealing with Abdul Ghafoor---s case are also relevant in this behalf and cannot be ignored.
9. The argument that as Criminal Miscellaneous No. 3239/B-1978 was filed earlier - in time (viz. On 20th August 1978) than Criminal Miscellaneous No. 3267/B-78 which was filed on 24th August 1978, there could be a bona fide excusable omission on the part of the counsel in not bringing to the notice of the learned Judge (Khalil-ur-Rehman, J) order of this Court dated 27th August 1978, refusing bail to Asghar Ali ; when he on 16th September 1978 granted bail to Muhammad Yousaf Sial respondent may prima facie be alluring ; but on closer scrutiny we find that such a situation was visualized and answer in the case cited above. Among other matters reference was made to records in the High Court for each sub-division/tehsil and the same being open to inspection by the counsel. Therefore, the learned counsel (in Criminal Miscellaneous No. 3239/B-78) with a little effort would have been able to find out the result of Criminal Miscellaneous No. 3267/B-78 or as the case may be the learned counsel while filing that very petition (Criminal Miscellaneous No. 3267/B- 78) could have known that another petition filed in the same case was being dealt with by another Bench. When confronted with this situation all the learned counsel appearing for the respondents frankly conceded that rule laid down in Abdul Ghafoor's case has not been followed and that it would be but proper that the orders of this Court dated 16th September 1978, and 26th September 1978, granting bail to d Muhammad Yousaf Sial and Nawaz respondents which were passed after the dismissal of Criminal Miscellaneous No. 3267/B-78 are recalled and the order of the learned Additional Sessions Judge, Lahore dated 2nd May 1979 allowing bail to Barkat Ali and Muhammad Bashir respondents' be also set aside so that all the accused persons are put in the same; position as prevailed on 27th August 1978 when Asghar Ali was refused bail. Respectfully following the rule laid down in Abdul Ghafoor's case we order accordingly. The bail granted to the four respondents by various orders is hereby cancelled.