1. MUHAMMAD YAQUB ALI, J.--The respondent No, 1 is -charged along with 19 other accused persons under sections 302, 307 and 456 read with sections 148 and 149, P. P. C. According to the F. I. R. the accused formed themselves into two batches. One batch including the respondent No, 1 climbed up the roof of the house of the complainant-appellant and fired indiscriminately at the women- folk of the house. The other batch of the accused fired at male members of the houshold who were lying on cots in the outer courtyard. As a result of the firing five persons were killed and Mst.
2. Sabiran, P. W., was injured by gun-shots.
3. Pending the inquiry under Chapter 18 of the Code of Criminal Procedure before a local Magistrate, the respondent No, 1 moved the Additional Sessions Judge for bail on the ground that he had produced evidence of alibi before the Investigating Officer and that there was inordinate delay on the part of the prosecution in the conduct of the inquiry. The application was dismissed by the Additional Sessions Judge who remarked that as the respondent No, 1 is an Assistant Sub-Inspector of Police, his release on bail was likely to prejudice the investigation and that the report under section 173, Cr. P. C., indicated that the Police were trying to favour him.
4. The respondent thereupon moved a petition in the High Court for bail being Criminal Miscellaneous No, 1611 of 1969 which was dismissed by a learned Judge on 22nd May 1969, with the following remarks: "We are, however, concerned with the fact whether or not there are reasonable grounds at this stage to release the petitioner on bail who has been charged for an offence punishable with death or transportation. According to the F. I. R. he was armed with a rifle and was one of the persons, who took part in the incident by firing at the women indiscriminately. The petitioner produced evidence of alibi which even according to the police report failed to completely convince the investigating agency about its correctness.
5. No evidence has yet been led in the case. Mr. M. B. Zaman, makes a grievance of the fact that the proceedings have been delayed. Ch. Riasat Ali Khan, who appears for the complainant, opposed this bail application. He stated that about six months were taken by the High Court in deciding a Revision Petition filed by the accused persons with regard to an interlocutory order of the Magistrate refusing copies to the accused. The delay cannot, therefore, be exclusively attributed to the prosecution.
6. In view of the fact that the petitioner's name definitely mentioned as one of the assailants. I am not inclined to grant bail to him at this stage. The learned Magistrate is directed to proceed with the case expeditiously."
7. As will be seen presently the inquiry could not be completed expeditiously as directed by the High Court due to dilatory tactics adopted by the accused. However, by the 1st of July 1970, the statements of the four eye-witnesses and most of the material witnesses were recorded when the respondent No, 1 moved a fresh application for bail being Criminal Miscellaneous No, 460 of 1970 in the High Court reiterating the grounds which has earlier not found favour with a learned Judge.
8. Another learned Single Judge who dealt with this petition allowed interim bail to the respondent No, 1 on 31st July 1970 in spite of the objections raised by the counsel for the State and the complainant and confirmed the bail on the 28th. August 1970, with the following observations :- "K. B. Riasat Ali, learned counsel for the complainant, has placed on record a chart showing the cause of delay in the inquiry on the other hand, learned counsel for the accused has traced out the progress of this case from the record minutely. This chart (Annexure 'A') has not been disputed by the learned counsel appearing for the State and the com-plainant. Its summary shows that twelve out of for .y-one witnesses cited in the calendar have been recorded in 790 days. The delay attributed to the prosecution is 389 days, for the absence of the Presiding Officer or over-work 191 days, attributable to the accused and the prosecution 30 days. Therefore, it will show that the case could not proceed either on account of the absence of the prosecution witnesses or the Presiding Officer, and on account of this, the accused cannot suffer. In addition learned counsel appearing for the petitioner has read out to me the Police Report submitted to the Inquiry Magistrate under section 173, Cr. P. C., which shows that the accused had produced some evidence of alibi before the Police, which according to the Investigating Officer was worth consideration. He pointed out that the evidence of alibi led by the accused comprised Ch. Muhammad Ashiq, the then Additional Superintendent of Police, Lahore, and other Police Officers. He urged that though the petitioner was challaned, but there is evidence on the record to show that the case of the petitioner is covered by section 497(2), Cr. P. C.
9. From the facts tabulated above, it is obvious that the delay in this case has occasioned by the absence of the Presiding Officer and on account of leisurely steps taken by the prosecution to produce their evidence and for that the accused cannot be blamed. Apart from this, the evidence on the police record ex facie shows that the case of the petitioner requires further inquiry."
10. Aggrieved by the order of the second learned Single Judge Muhammad Khan, complainant, moved this Court for special leave to appeal contending inter alia that the delay in the completion of the inquiry under Chapter XIII was due to the dilatory tactics adopted by the defence and that the remarks by the learned Judge that the plea of alibi raised by the respondent No, 1 required further inquiry as provided in section 497(2), Cr. P. C., was unwarranted in law.
11. The Court found that the contentions raised by the learned counsel appearing in support of the petition was not without force, but in order to avoid inordinate delay, it was directed that notices should issue to the Advocate-General and the respondent No, 1 returnable for the 16th of December 1970.
12. We have now heard the learned counsel for the parties and the Assistant Advocate-General for the State and decided to hear the petition as an appeal. The appellant has filed an extract from the proceedings in the Court of the Inquiry Magistrate which shows that after the first application for bail' was dismissed by the High Court, the defence adopted dilatory tactics which were mainly responsible for delay in the completion of the inquiry.
13. On 6-8-1969 the Inquiry Magistrate declared Bari, accused,. as a proclaimed offender. On 1-9-1969 Irfan Aslam who was on bail failed to appear. His bail bond was cancelled, but he appeared on the same day and the surety bond was restored. As a result of Wan Aslam's absence, the cross- examination of Muhammad Khan, complainant, could not be completed. On 27-9-1969 the case was adjourned without any proceedings as one of the defence counsel wanted to attend to some personal business. On 9-12-1969 Sanaullah son of Allah Ditta, accused, did not appear as he was to appear in the High Court presumably in connection with a bail application he had moved earlier.
14. The file was summoned by the High Court and it remained there till 14-2-1970. Thereafter some progress was made and a number of witnesses were examined when Arshad and Safder, accused, filed a bail application in the High Court. The file was got summoned there and it was sent back on 29-6-1970.
15. On 3-7-1970 Khushi Muhammad, accused, absented himself and he did not appear on three subsequent hearings. He appeared in Court on the 28th July 1970, which brings us near to the date when the second learned Judge in the High Court granted interim bail to the respondent No, 1 on the 31st July 1970.
16. The dilatory tactics adopted by the accused did not end here. One of the accused again moved a petition in the Sessions Court and had the file summoned there and no proceedings could take place up to 9-10-1970 as the file was not received back till that date. Finally two of the accused, namely, Abdul Sattar and Sadiq, who were in custody decamped on 9-1-1971 and have not yet been apprehended.
17. Had the learned Judge examined the history sheet of the case, he would not have fallen in the error that the delay attributable to the accused was only 50 days and that the prosecution was responsible for delay of 389 days.
18. The remark by the learned Judge that "the evidence on the Police record ex facie shows that the case of the petitioner requires further inquiry" was equally unwarranted. The final report under section 173, Cr. P. C., having been submitted in the Court of the Inquiry Magistrate and the statements of a number of witnesses recorded by him, section 497(2), Cr. P. C., was not attracted.
19. There is no other provision in law under which a further inquiry could be made by the Police.
20. As to the plea of alibi the report of the Investigating Officer showed that he did not consider the evidence in support of the plea such as to render the direct prosecution evidence untrustworthy.
21. The learned Judge on the contrary observed that the Investigating Officer found the plea of alibi worth consideration, but omitted from consideration the very next sentence that the evidence was not such as to contradict the account given by the eye-witnesses.
22. The order passed by the learned Judge allowing bail to the respondent No, 1 was thus based on misconstruction of the record and it also suffered from the impropriety pointed out by this Court in the case of Farid v. Ghulam Hussain and others . Dealing with a similar case in which a learned Judge had allowed bail to an accused person who had been refused bail by another Judge, it was observed by the Court.
23. "It should also have been a matter of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long established practice of his Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for1 disposal. Such a course would have had the merit of avoiding the possibility of two contradictory orders being passed in the same case by the High Court. It was urged that the plea of alibi was not considered by the High Court while cancelling the bail granted to the respondents, but the plea was neither urged before the Sessions Judge nor before Mr. Justice Jamil Asghar. It could not, therefore, be said that a new circumstance was made to appear which justified the passing of a contradictory order."
24. We fail to see why the rule laid down in Farid v. Ghulam Hussain and others which must have been brought to the notice of the learned Judge was not followed in the present case. We were told that when interim bail was granted the first Judge was not available. But having granted interim bail to the respondent No, 1 he should have stayed his hand and sent the case back to the first Judge who had in the first instance refused bail.
25. We do not want to lay more stress on this point except to point out to the learned Judge the constitutional duty that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan and that all Judicial authorities throughout Pakistan shall act in aid of the Supreme Court. If these provisions of the Constitution were given due consideration, we are sure that the second learned Judge would not have passed the order dated 31st July 1970, which in effect was tantamount to countermanding the order of the first learned Judge.
26. In the circumstances, the order granting bail to the respondent No, 1 cannot be sustained on any hypothesis. It is erroneous in law, is based on misconstruction of record and suffers from the impropriety that another learned Judge having refused bail it was necessary that the case be sent to him for passing final orders.
27. We, accordingly, allow the appeal and set aside the order dated 31st July 1970, of the High Court granting bail to the respondent No,
1. He shall surrender to his bail bond forthwith. 1968 SCM R 924