' This is the complainant's petition for cancellation of to Muhammad All and Wajid All respondents Nos. 1 and 2 (hereinafter called as the respondents) by Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge-II, Muzaffargarh, vide order dated 4 4-1985 in a case under section 302/307/148/149, P. P. C. Registered with Police Station Kot Addu, vide F. I. R. No, 57, dated 13-3-1985.
In the F. I. R the respondents alongwith seven others were alleged to have caused the death of Sher Muhammad deceased and injured Lal Khan, Ghulam Abbas, Bashir Ahmad and Ghulam Farid P.
Ws. In respect of the same incident F. I. R No, 56 was registered on the complaint of Allah Bakhsh. In this F, I. R. The complainant party of the other F. I. R. Was cited as accused who allegedly had caused the murder of Khuda Bakhsh Shah besides causing injuries to other six persons named therein. In both these F. I. Rs, the occurrence is stated to have taken place in Killa No, 22 of Rectangle No,
67. The case of the accused-respondents is that they are in possession of this Killa through Niaz Ahmad their tenant. The claim of the complainant party on the other hand is that as per entries of Jamabandi for 1975-76 and relevant Khasra Girdawari as well as factually Lal Khan P.
W. Is in possession of the Killa in question. A dispute between the parties is also going on with respect to possession over Killas Nos. 1 and 2 of Rectangle No, 91.
2. The respondents-accused submitted an application for bail before arrest on 17-3-1985 and the learned Sessions Judge, Muzaffargarh, issued notice to the State and summoned the record for 20- 3-1985. On this date as the respondents failed to appear the application was dismissed for non prosecution at 3-45 p. m. By the learned Sessions Judge. The respondents then moved a second application on 30-3-1985 when the learned Sessions Judge was on tour to Kot Addu. This application was marked by the senior Additional Sessions Judge to the Court of Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge-II, Muzaffargarh, for disposal. Mr. Muhammad Rafiq Majeethia granted ad interim bail before arrest the same day and then confirmed the same on 4- 4-1985. The observations made while granting the pre-arrest bail being pertinent may be quoted hereunder :- "I have- examined the record of this case, as per site-plan, the occurrence took place in Killa No, 22 of Rectangle No, 67, which according to the statement of Ghulam. Rasool, Patwari Halqa, available on record under section 161, Cr. P. C., belongs to Ghulam Ali etc. Situated at Chah Areeki-wala, Mauza Jhajhenwali and in cultivating possession of Niaz Ahmad their tenant. The adjoining Killa No, 21 is also in possession of Niaz Ahmad tenant and on the southern side of the place of occurrence lies Killas Nos. 1 and 2 of Ractangle No, 91, which are claimed by the complainant party to be in their possession. It means that actually occurrence took place in the land owned by the petitioners and in their possession through their tenant. The fact of their not having been injured at the spot while the remaining co-accused have been injured, participation of the petitioners in the occurrence seems to be doubtful. Accordingly, the possibility of the petitioners having been involved mala fidely for their disgrace and humiliation, just because they are owners of the land cannot be ruled- out. This case being a case of counter-version and the counter-version also seems to have some truth in it, the matters like vicarious liability and that who was actually the aggressor would be determined at the trial."
' It is pertinent to note that the learned Additional Sessions Judge though recorded findings on the question of ownership and possession of the land in which the occurrence took place and also expressed opinion with regard to other important aspects of the case, yet in the last para. Of the order he observed that without going deep into the merits of the case he was of the considered view that the respondents were entitled to be admitted to bail. The order granting pre-arrest interim bail was thus confirmed. This order, dated 4-4-1985 was assailed before this Court by moving the present petition for cancellation of bail, and vide order, dated 20-4-1985 the petition was admitted, the respondents and the investigating Officer along with the record were summoned for 5-5-1985. At this stage notice may also be taken of anotner development i,e, the accused in both these counter-cases moved for bail after arrest. The petitions were heard by the same learned Additional Sessions Judge (Mr. Muharnmad__Rafiq Majeethia) and vide order, dated 2-5-1985 the accused in both the cases were admitted to bail. This order was passed without awaiting the decision of the petition for cancellation of bail pending in this Court.
3. In view of the circumstances noted above, 'the learned Additional Sessions Judge was summoned in this Court. He appeared on 22-5-1,85 and stated that in the application disposed of by him information regarding filing of and dismissal of any application was not provided by the respondents. Learned counsel for the parties when asked staled that they are not in a position to state whether the counsel who argued the bail petition on behalf of the parties had informed the learned Additional Sessions Judge about the dismissal in default of the previous application. In view of the above a report was called for from the learned Sessions Judge, Muzaffargarh and the record was also summoned. Learned Sessions Judge in his report submitted that in the second application the respondent failed to mention the fact that their previous application was dismissed in default by the Sessions Court though it was incumbent upon them to do so and that was the arrangement for knowing the dismissal of the application moved by a party. He added that a counsel of the public-prosecutor or the police officer can also inform the Court at the time of arguments. Today, learned counsel for the parties, however, stated that they have been informed by the counsel who argued the bail application before the learned Additional Sessions Judge that they had brought the fact of dismissal of the previous bail petition to the notice of the learned Additional Sessions Judge but he proceeded to hear the bail matter probably for the reason that earlier application was not disposed of on merits.
4. Before proceeding further it may be noted that both the parties have today produced documents which show that a serious dispute is going on between the parties on the question of possession of the land of Killa No, 22 of Rectangle No, 67 and Killas Nos. 1 and 2 of Rectangle No, 91.
The S. H.
0. Further stated that Ghulam Rasool Patwari in his supplementary statement admitted that the complainant in F. I. R. No, 57 had title in Killa No, 22 to the extent of 12 Marlas. The learned Additional Sessions Judge in the impugned order has primarily relied on the statement of Ghulam Rasool Patwari recorded under section 161, Cr. P. C. It was on the basis of the said statement that he drew certain conclusions and made other observations rather in strong terms which the Courts advisedly avoid to make while disposing of bail matters. The rule of caution laid down in this respect by the learned Judges of the Supreme Court in the case of Ziaul Hassan v. State (11 is that the duty amongst others of the Court granting pre-arrest bail is to examine the question whether such an action would not frustrate the investigation. Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge, completely ignored this rule as he recorded his conclusions and observations which have in fact not only prejudiced the investigation but also have resulted
(1) PLD 1984 SC 192 ' in frustrating it. Be that as it may, this was not the proper occasion or the time for going into the veracity or the truthfulness of the version of any o the parties. It is pertinent to note that the presence of the respondents at the spot at the time of occurrence cannot be dented as the same stands admitted in the F. I. R. Registered at the instance of their party-man. Moreover, the co- accused of the respondents are not the tenants of th land in question but are stated to be residents of far off places and in these circumstances the assertion of the counsel for the petitioner was that these co-accused were brought by the respondents for dispossessing the complainant party and that all the accused acted in concert with each other and all of them as such were liable for the offences attributed to them. The plea of mala fide, it will be seen, was also not examined in the correct perspective. In this respect the observations made in Ziaul Hassan' case (supra) are :- "The Court has no power, to grant bail before arrest unless all the conditions laid by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context ajso that the other condition of irreparable loss is to be viewed."
The plea taken in the petition for pre-arrest bail was that the local police wanted to arrest the respondents and in case they were so arrested they would be humiliated as they are Zamindars of the area and belong to a very respectable family which wields a great influence in the area. This hardly makes out a plea of mala fide of the police or a case of mala fide arrest. I am, therefore, of the considered view that at that stage, of the investigation the learned Additional Sessions Judge acted illegally in granting pre-arrest bail to the respondents. For all these reasons I accept the petition moved by the petitioner, set aside the order, dated 4-4-1985 of the learned Additional Sessions Judge with the result that the pre-arrest to the respondents stands cancelled.
5. I have not gone into the merits of the respective versions of the parties on the basis of the documents produced in this Court as the question of possession over Killa No, 22 and the adjoining land is still under investigation and all these questions will have to be gone into during the trial. The learned Additional Sessions Judge was misdirected in going into these matters and in making observations in favour of the one and against the interest of the other party. In bail matters such exercise is to be avoided lest it may prejudice the case of one or the other party.
6. The matter does not end here as the conduct of the learned Additional Sessions Judge cannot be left un-noticed. Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge, entertained the application despite the fact that it did not bear the necessary certificate to the effect that the Sessions Court or the High Court was not previously moved for seeking the same relief. In case any such application has been moved previously then the result of the same is to be indicated. In this respect stand of the parties before me was that information as to the moving of the previous application and its dismissal for non-prosecution was given to the learned Additional Sessions Judge, who in turn when appeared, however, stated that he was not made aware of the fact that the respondents had in fact moved similar application earlier. The learned counsel, namely, Mr. Ehsan Karim, Advocate, who had argued the second application was the counsel who had moved the first application. It was his duty to spend the necessary certificate which was in my view conveniently avoided by having the second application moved through another counsel as later on he (Mr. Ehsan Karim, Advocate) who had moved the earlier application argued the second bail application. Such a conduct of the learned Members of the Bar cannot be commended as they being officers of the Court are bound by the professional etiquette and principles of legal ethics and are expected to act in upright and dignified manner and not to conceal from the Court the information required to be furnished to it. It is a matter of great regret that this duty seems not to have been performed properly. In any case as the requisite certificate had not been given, it was incumbent on the learned Additional Sessions Judge to take the necessary enquiry or to have the certificate appended. Had this been done, the moving of the bail petition earlier and its dismissal would have been known. Was this not done intentionally ? The allegation is that this was not so done intentionally with a view to obtain favourable order in the absence from the Headquarter of the learned Sessions Judge. This allegation in the circumstances cannot be ignored though at the same time the allegation cannot also be said to have been established fully, but as observed in the case of Muhammad Yousaf v. State (1) such a conduct is bound to create serious misgivings in public mind against Judicial Officers. They should, therefore, conduct themselves in such a manner that no doubt can be cast on their integrity and impartiality. In the present case it is obvious that the conduct of Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge was objectionable as he failed to observe the normal practice of the Court. This is not the end of the story as during the pendency of the present petition for cancellation of bail, the learned Additional Sessions Judge took up the petitions for bail after arrest of the other accused and vide order, dated 2-5-1985 granted bail to them. This was apparently done in order to take the sting out of the case and to satisfy the complainant party. The learned Additional Sessions Judge in propriety shou-14--have- awaited the decision of this petition especially when while granting the pre-arrest hail he had made certain observations with respect to the merits of the case. The pendency of this petition was in the knowledge of the learned Additional Sessions Judge. It was nobody's case before me that the pendency of this petition was not known to the learned Additional Sessions Judge. This conduct of Mr. Muhammad Rafiq Majeethia, Additional Sessions Judge, Muzaffargarh, must be condemned as most reprehensible. A copy of this order shall be sent to the Registrar, Lahore High Court, Lahore, for placing the same on the personal file of the learned Additional Sessions Judge.
7. The learned Sessions Judge, Muzaffargarh, shall also see as to how the second petition was fixed for hearing when the same did not contain the necessary certificate. He will fix the responsibility and the person found responsible shall be proceeded against departmentally with intimation to this Court.
8. The record of the two bail petitions be sent back immediately.
Bail cancelled.
(1) 1984 SCM R 134 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.