1. ' ZIA PERVAIZ, J.---By this application under section 561-A, Cr.P.C. Moved on behalf of the applicants in Criminal Bail Applications Nos.813, 814,. 815 of 2004, 913, 914, 915 and 333 of 2005 prayer has been made for recall of the order passed today in this matter in the absence of the learned counsel as he was not present in Court. An apology has also been tendered by Mr. I.A. Hashmi in this regard.
2. ' The applications for bail before arrest were moved sometimes in August, 2004. Repeated adjournments were sought on 14 days intervals of hearing by the applicants in Criminal Bail Applications Nos.813, 814 and 815 of 2004 whereas other applications were moved later but adjournments were also sought therein which were allowed in spite of objection from the side of prosecution associated by Mr. Azizullah Shaikh Advocate and opportunities were afforded to the applicants to proceed with the hearing of the applications. It was after a number of adjournments ultimately the matter was taken up by the complainant before the Honourable Chief Justice of this Court who in order dated 14-11-2005 has observed:-- "Learned counsel for complainant states that the applicants are taking unfair advantage of an order of interim bail as hearing has been adjourned several times for inadequate reasons."
3. ' Be that as it may the matter be fixed on 29-11-2005 at 8-30 a.m. According to roster.
4. ' On the case coming up for hearing before Court on 29-11-2005 request for adjournment was again made by Mr. I.A. Hashmi, learned counsel for the applicants, on the ground of his illness.
5. Taking into consideration the. Personal ground of the learned counsel the matter was once again adjourned for today at 8-30 a.m. In spite of vehement opposition by the learned counsel for the complainant. However, the applicants were put to notice that in case of inability of Mr. Hashmi to proceed with the matter on the next date of hearing at 8-30 a.m. They may make alternate arrangements so that the matter may not be adjourned.
6. ' Yesterday, Mr. Hashmi appeared in my chamber and made a request that, on account of ill health, he may not be able to appear at 8-30 a.m. And he would appear a bit later by 9-00 a.m. Today also the case was kept aside after it was called at 8-30 a.m. When the case was taken up at 9-00 a.m. Learned counsel was still not present and the above order was passed; hence this application (M.A. No,417205) is moved. Application reads as follows:-- "Application under section 561-A, Cr.P.C.
7. ' It is respectfully submitted by the undersigned counsel for the applicants that the undersigned got struck up in the traffic jam near PIDC House in the morning and therefore, got slightly late in reaching this Honourable Court for which the undersigned apologises and requests that these matters may please be taken up now to hear on merits in the interest of justice. The earlier order passed in the absence of the undersigned may kindly be recalled."
8. ' Before proceeding on merits Mr. Hashmi also opposed the appearance of Mr. Azizullah Shaikh, Advocate on the ground that the prosecution has to be conducted by the public prosecutor and not a private counsel and only assistance can be rendered by any other counsel who has no right to address the Court as provided in section 483 of Cr.P.C. He has placed reliance on photocopy of an application stated to have been moved under signatures of Mr. Azizullah Shaikh in Bail Application No,811 of 2005 (Farooq Mengal v. The State) wherein appearance of Mr. M. Ilyas Khan, Advocate was opposed. However, the law has been settled on the point as to the manner and appearance of the counsel resting with the case of Malik Asad Khan v. The State (1969 PCr.LJ 1058) wherein it has been observed as under:- - "I am of the view that a Court can always ask any lawyer practising in that Court to assist it in the decision of a matter before it where the State representative is not before a Court; and, can call upon a complainant's counsel as amicus curiae if a Court considers it desirable to obtain the assistance of a counsel engaged by a complainant in placing the facts before it. In the instant case, as I am ordering the transfer of the case to this Court's original jurisdiction, I consider it desirable that the counsel for the eminence of Mr. M. Anwer, who has been engaged by the complainant should be allowed to act in this case as required under section 493, Cr.P.C."
9. ' I am in respectful agreement with the view taken in the aforesaid case. The permission being discretionary may be withdrawn by the Court if and when it appears to be no longer required. The withdrawal of permission in the aforesaid Bail Application No,811 of 2005 the Court observed where that the prosecution is being delayed as a result of the assistance offered to prosecution has no bearing on the present proceedings. This point does not require any further consideration.
10. ' On merits regarding the maintainability of the application under section 561-A, Cr.P.C. a specific question was put to Mr. I.A. Hashmi, learned counsel for the applicants, as to whether the applications for pre-arrest bail can be heard after order for taking the applicant/accused in custody has been passed as the same became infructuous once the applicant/accused were taken into custody? Mr. Hashmi has taken pains to elaborately refer to the point of inherent jurisdiction of the High Court to recall its own orders passed under the provisions of Cr.P.C. To the extent they do not fall within the definition of a judgment. Learned counsel argued that order on bail application is not judgment as such the inherent jurisdiction of the High Court is available for recall of such order. In support of his contention, he has placed reliance on the case of Gul Muhammad v. The State (1999 SCM R 2765), Masood Khan v. The State (1996 M LD 502) and Allah Rakha v. The State (2000 M LD 1932).
11. ' In reply to the above contention of the learned counsel for the applicant, Mr. Sohail Jabbar, learned State Counsel, requested to adopt the arguments advanced by Mr. Azizullah Shaikh, learned counsel for the complainant assisting the prosecution who has been permitted by this Court to address.
12. ' Mr. Azizullah Shaikh learned counsel assisting for the prosecution, has opposed this application on, the ground that once applicants have been arrested they are no longer entitled to the relief of bail before arrest. The applications for pre-arrest bail of the applicants having become infructuous by operation of the earlier order, they cannot now be considered. The remedy after arrest of the applicants/accused lies by way .Of moving application for bail after arrest and not for recall of order whereby the applicants/ accused have already been taken into custody.
13. ' I have heard the learned counsel for both the parties and have gone through the case-law cited by learned counsel for the applicants. In case of Gul Muhammad (supra) the Honourble Court was pleased to uphold the power of the High Court where in a case for recall of witness order were passed and held that the Court had jurisdiction to recall such an order. In the case of Masood Khan (supra) an application had been moved to the learned Court for reduction of amount of surety.
14. The application was dismissed on the ground that the Court had no jurisdiction. This view was overruled by the Peshawar High Court and the order was set aside. The point involved in case of Allah Rakha (supra) was the question of awarding of concurrent sentence to the co-accused at the time of dismissal of appeal as the co-accused was adversely affected. The Court upheld the view that the power for recall of the order in such cases are available with the Court. The points involved in these cases cited by the learned counsel for the applicant are all distinguishable from the present case where the applications for bail before arrests have become infractuous after the applicants/ accused have taken into custody. In spite of being asked Mr. Hashimi could not produce any precedent on the point that such an order can be recalled after bail of the applicant/ accused is cancelled.
15. ' In view of the above discussion I am of the humble view that after the accused are arrested and taken into custody in presence of the order of Court an application for grant of bail before arrest cannot be taken up for rehearing. For the foregoing reasons this application has no merit and it is dismissed.