' KHAWAJA MUHAMMAD SHARIF, J.---The record has been received. I have gone through the same.
Power of-attorney of complainant is on the file. I had also summoned Malik Tanvir Aslam, Advocate, learned counsel for the complainant who had appeared before the learned Addl.
Sessions Judge, Faisalabad.' Today he is present in Court. He has filed his affidavit stating therein that he had appeared on behalf of the petitioner/ complainant before the learned Additional Sessions Judge, Faisalabad and argued the case but neither his submissions were recorded nor his presence was marked in the impugned order while in the open Court learned counsel for respondent who was also petitioner's counsel in the trial Court, verifies the submission made by learned complainant counsel and it is very sad state of affairs.
2. In this view of the matter, the learned Additional Sessions Judge is directed to explain as to why he had not marked presence of learned counsel for the petitioner who was complainant before him, when the case was argued and why also did not record the submissions made by him. The explanation be submitted to this Court within two weeks.
' Office to prepare a separate file in this regard. Future course of action shall be decided after receipt of his explanation on 26-9-2005.
3. Now I would advert to merit of the petition for cancellation of bail. This is an application for cancellation of bail before arrest granted by learned Addl. Sessions Judge, Faisalabad.
4. Learned counsel for the petitioner submits that it was not a case of bail before arrest; that respondent is named in the F.I.R. With specific role; that he had trespassed into the house of the complainant; that as far as delay in lodging the F.I.R. Is concerned, the local police under the influence of respondent did not register the case; that thereafter the petitioner approached higher police authorities for registration of the case but no action whatsoever was taken; that petitioner then approached this Court and filed a Writ Petition bearing No.7176 of 2005 for registration of the case against the respondent which came up for hearing on 2-5-2005 and following order was passed:- "This is a writ petition for the registration of case. Learned counsel states at bar that petitioner has not moved the learned Sessions Judge, concerned under sections 22-A and B, Cr.P.C., that respondent No.5, who is an Advocate, is a very influential person.
(2) Heard. Petitioner is directed to appear before respondent No.1, detailing his grievance in writing, who would get the matter inquired from some gazetted Police Officer not below the rank of DSP, would join both the parties in the inquiry proceedings and thereafter, if a cognizable offence is made out then the needful shall be done strictly in accordance with law. Disposed of accordingly."
5. Thereafter, the local police conducted a detailed inquiry and it was found that averments of the writ petition are correct and the respondent is guilty in the case. Learned counsel for the petitioner further submits that considerations for grant of bail before arrest and after arrest are totally different; that no case for bail before arrest is made out.
6. Learned counsel for the respondent submits that case against the respondent is totally false; that the complainant with the connivance of local police got registered a case against the respondent; that respondent is an Advocate and is respectable person that his co-accused have already been allowed bail and that law of consistency demands that this petition for cancellation of bail may be dismissed and the order of learned Additional Sessions Judge granting bail may be maintained. He has relied upon Nazeer v. The State 2003 PCr.LJ 418.
7. Learned State counsel submits that respondent criminally trespassed into the house of the complainant and he is not entitled to the concession of pre-arrest bail.
8. Learned Addl. A.-G. Submits that sentence under section 452, P.P.C. Is 7 years' R.I. Further submits that statements of two police officers namely Javaid Khan Lodhi, S.-I. And Nazir Ahmad, S.-I. Are on record that they went on the spot, had seen the respondent having taken liquor along with pistol but simply they did not proceed against him in accordance with law.
9. I have heard learned counsel for the parties and have also gone through the F.I.R., the order passed in the writ petition and impugned order passed by learned Additional Sessions Judge. I am unable to understand that why learned Additional Sessions Judge while confirming the bail of the respondent did not mark the presence of learned counsel for the complainant and did not even mention a single argument on behalf of the complainant. In this regard I have passed order in the earlier paragraphs. I have asked the said learned Additional Sessions Judge to submit his explanation in this respect.
10. After hearing this case, I have no hesitation in observing that now-a-days some persons are posing themselves to be above the law but in my view, nobody in the country is above the law but the case in hand is classic example of the same and misuse of exercise of discretion by the Court who being custodian of law should not become tools in the hands of such-like persons.
Respondent is named in the F.I.R. The delay in lodging the F.I.R. Has been explained. The three Investigating Officers have found him guilty and recovery of pistol is yet to be effected from him.
The order passed by learned Additional Sessions Judge while granting bail before arrest is not legal one. Considerations for grant of bail before arrest and after arrest are totally different. It is not the case of bail before arrest. In this view of the matter, this petition is accepted and the order passed by learned Additional Sessions Judge for the grant of bail before arrest islq withdrawn.
' Before parting with this order I am at pains to note that it is clearly mentioned in the case diaries, which have been read before me by the learned Addl. A.-G. That two Police Officers namely Javaid Khan Lodhi, S.-I. And Nazeer Ahmad S.-I. Had gone to the house of the complainant after getting information where respondent Gohar Ayub was apprehended at the spot and pistol was taken from him. According to the statements of these two Police Officers, the respondent was drunk but unfortunately they did not get a case registered against him for taking liquor under Prohibition Order, 1979 after getting him medically examined.
' A copy of this order be sent to D.I.-G. Police, Faisalabad who would inquire into the matter that why these two Police Officers have not performed, their duty which they were bound to perform under the law and thereafter a necessary departmental and legal action shall be taken against them under intimation to this Court through D.R. (J) within two weeks.
Bail cancelled.