ORDER
(i) That the petitioner's name is not mentioned in the F.
1. R.
(ii) that if Aslam accused, who as the learned counsel put it, has been killed by the police, is added to the arrested persons, the total number of accused would come to six while, according to the F. 1.
R. They were five, therefore, the petitioner is entitled to benefit of being the sixth man who might be innocent;
(iii) that if, as the learned counsel put it, 'the principle laid down' in another bail matter (Crl. Misc.
No. 160/B-73) decided on 8-2-73 is followed, the petitioner would be entitled to be released on bail and lastly;
(b) that there has been inordinate delay in the completion of the commitment proceedings.
2. Except for an uncertified copy of the F. L R. And the order passed by the learned Sessions Judge, no other relevant material has been placed on this petition. This is despite the fact that according to the learned Sessions Judge, Akbar Gul, Muhammad Sharif and Bashir Ahmad have been examined as eye-witnesses before the committing Magistrate and they have "named the petitioner". It is also necessary to note that for reasons best known to the petitioner, no reference has been made in the petition to the dismissal of an earlier bail petition by this Court (Crl. Misc. No. 2292/B-72) filed on behalf of two co-accused of the petitioner, namely, Quresh and Mall. This fact is specifically mentioned in the order passed by the learned Sessions Judge and the learned counsel for the petitioner had in hand a copy of the order passed by my learned brother Mushtaq Hussain, J., in that petition. During the hearing of the case the number of the petition was not available, therefore, the learned counsel read the copy from his brief. The original order is reproduced below for reference:- "A case was registered on 24-1-1971 and complete challan was put in on 16th March 1972. This delay was caused by abscondence of one of the accused Muhammad Aslam. Seven months have thus elapsed since the complete challan was put up, it is not possible for me to accept the contention that the disposal of the case has been delayed at the inquiry stage.
(2) It has been submitted that the petitioners were not mentioned in the F.
1. R. By name and the only description given was that they were persons of "strong body and youthful" and this expression which could apply to a very large number of persons in the country.
(3) As against this contention it has been submitted that Injur Khan one of the raiding party which is said to have been attacked by the accused persons has already appeared as a witness before the Inquiry Magistrate and has identified the petitioners as persons belonging to the raiding party.
In these circumstances any expression of opinion on my part would be premature and would in any case prejudice the decision of the case. Be that as it may, the facts disclosed above do not warrant the granting of bail to the petitioners and the application is, therefore, dismissed.
(4) I do hope that the inquiry will not be unnecessarily delayed."
The order passed by my learned brother Saleem. Mazhar, J. In Crl. Misc. No. 160/B-73 on 8-2-73, which has been relied upon by the learned counsel for the petitioner, is also reproduced below:- "A case under section 302/148/149, P. P. C. Was registered against the petitioner and six others on 17-10-72 at Police Station Toba Tek Singh at 3-30 p.m. On the statement of Nawabdin complainant.
The occurrence resulted in the death of Bashir Ahmad deceased, who had firearm injury on his person. Ashiq and Allah Lok, companions of the petitioner, are said to have been armed with gun and a pistol respectively. The deceased had no injury, which could have been caused by the barchhi with which the petitioner was armed. The petitioner has a firearm injury on his person.
(2) The petitioner is allowed bail in the sum of Rs. 20,000 (Rupees twenty thousand) with one surety in the like amount to the satisfac--petition of the Assistant Commissioner, Toba Tek Singh."
3. After hearing the learned counsel, I see no reason to differ with my learned brother Mushtaq Hussain, J., in so far as the grant of bail, in the facts and circumstances of this case, is concerned.
His Lordship did take note of the question of delay; the fact that there is no mention of the names of some of the accused in the F.
1. R.; that an eye-witness having appeared before the Inquiry Magistrate has identified the accused in Court; that any expression of opinion on these matters by this Court would be premature as it might prejudice the decision of the case; and lastly that, be that as it may, the facts of the case did not warrant the granting of bail to the accused.
4. Learned Sessions Judge has dealt with the question of delay and has observed that the main reason for the same was abscondence of one of the accused. In a case like the present one, where the allegation is that the accused belong to a desperate gang and had formed an unlawful assembly for a common purpose, the abscondence of one of them would have sonic effect on the claim of the others for bail on ground of delay because of a possibility of planned abscondence by one for benefit of all. However, even if it were not so, keeping in view the circumstances of the case and the allegations made in the F.
1. R., I would not exercise discretion in favour' of the petitioner on ground of delay. The learned Sessions Judge, in t e order dated 10-8-72 (copy on the file of Crl.
Misc. No. 2292/B-72) hasobserved that "the accused are renowned Badmash and the apprehension' of their misusing the privilege of bail cannot be overlooked". The mere bald assertion by the petitioner that he has been falsely implicated by his alleged enemies is not enough in the above circumstances to allow bail to him, particularly in the face of serious allegations against him and his co-accused, some of whom were allegedly involved in an earlier murder case, to the effect that they are such desperate type that they allegedly fired indiscriminately at the police killing an innocent person whose only fault was performance of his lawful duty of apprehending absconders in an earlier murder case.
5. The contention of the learned counsel based on his mathematical counting of the number of the accused now being proceeded against, is not very convincing. Learned counsel himself is not clear about it nor any material has been placed on this file to support his assertion. Moreover, it is mentioned in the order of the learned Sessions Judge that three eye-witnesses have named the petitioner before the committing Magistrate as one of the culprits. In addition, there has been a test identification parade in which the petitioner was identified as one of the culprits. These and other items of evidence cannot be brushed aside on the basis of so-called increase of number of accused. For the purpose of disposal of this petition, there is sufficient material against the petitioner in so far his identification as one of the culprits is concerned. I, therefore, repel the contention of the learned counsel.
6. If the circumstances mentioned in the F. I. R. And the order of the learned Sessions Judge are taken into account, it would be too much even to surmise, at this stage, that the petitioner, if found guilty, would not be vicariously liable for the acts of his co-accused. The case has been registered under section 302/307/353/148 read with section 149, P. P. C. The reliance of the learned counsel on the observations in the bail order in another case (Crl. Misc. No. 160/B-73) is misplaced. No general principle was laid therein. Moreover, as it appears from the orders, the petitioner in that case was released on bail because he was specifically alleged to have used a barchhi while there was no injury on the deceased which could have been caused with such a weapon. Moreover, the accused had himself suffered a firearm injury. The bail order in that case has to be read in the background of allegations in, and peculiar circumstances relating to, that case. It has no application in this case where the facts and circumstances are totally different. The chain of events mentioned in detail in the F. I. R.; the evidence that has come on record; the conduct of all the accused; the apprehensions about misuse of bail; the fact of previous order by this Court in this very case on merits; and other circumstances make it (this case) clearly distinguishable from that cited by the learned counsel, in so far as the question of bail is concerned.
7. After carefully considering all the aspects and circumstances of this case, I find no merit in this petition and the same is dismissed in limine.
8. At the end of the hearing, the learned counsel wanted me to make a mention in my order that when (in my judgment) he had exhausted all relevant points and started advancing frivolous arguments in support of the above contentions `I stopped him from doing so and announced the orders and further that, on this the learned counsel remarked that `he had not been heard' in this bail matter. I tried to make him understand that he had been heard more than enough and that the remarks were not necessary to be noted because in that case (I thought) I might have to express my true feelings about the conduct of the learned counsel; but he insisted that I must do it, implying That otherwise I would be failing in my duty. He, by that time, had become so emotional that he, probably inadvertently, made one incorrect statement that he had been heard 'only for five minutes'. He was told this time with firmness that it was an utterly incorrect statement. He then in a rude gesture, while moving away from rostrum, threw his papers with a bang on lawyers' table saying that he was 'dissatisfied', and indignantly walked away. The conduct of the counsel pained me indeed and I could have taken necessary action in law forthwith but I restrained myself for the reasons; that the counsel has in the past by and large, been well-behaved; that such like conduct is almost becoming an order of the day and the process of correction as was indicated in State v.
Mujibur Rehman Shami (P L D1973 Lah. 1), is no doubt essential but, in my view, it should not start with comparatively junior lawyers; that in such like cases mild expression of displeasure would, perhaps, have a better effect and thus was a better course.
9. Even though the complaint of the counsel, on its very face, is not only incorrect bat also unjustified yet it will not be out of place to make some comment on it. As already indicated, I had heard the learned counsel enough when I announced the order. I have not kept a record nor I could keep an exact account of time because I was not expecting this unusual conduct of the counsel but, as I have dictated this order within half an hour, I remember vividly that when the counsel said he had been given only five minutes, in surprise I looked up at the Court clock and felt that he might have already taken at least half an hour, if not more; and on this feeling he was told that he was wrong. Looked at the matter intrinsically also, he was obviously wrong. He introduced the case ; then for some time, without reading the two High Court orders in bail matters, their implications were broached; one file was available, the other had not been cited in the petition-learned counsel searched for particulars in his brief but could not give the number of the petition, however, he did produce a hand-written copy of the order of Mushtaq Hussain, J., for my perusal; as I was having difficulty in reading the copy, the learned counsel read the whole of it for my benefit; then with the contemporaneous comment on that order, he relied on the other order and thereafter formulated his contentions on my asking; then he argued the case quite comfortably for some time, with a neutral response including some light remarks by me; but the moment I made some questioning remarks for eliciting better answers for my benefit, the mood of the counsel suddenly changed; when, after some arguments which at the end had tapered into frivolous field, I announced the order of dismissal, learned counsel lost all balance which he had shown earlier. The intention in giving the above details is neither to give any evidence in support of my estimate of time spent by the counsel nor otherwise to vindicate my own position. The purpose is more comprehensive than this insignificant aspect of the matter. It needs to be emphasized for the purpose of assurance to the gentlemen members of the Bar that there can never be real clash of positions of a Judge and a lawyer during the hearing of a case and this would include those situations also where, during the arguments in a case, the Judge does not agree with the point of view put forward by the lawyer.
Most of the remarks and comments, even if they tend to be adverse to the opinion of the counsel, are intended to elicit better answers and arguments so as to reach realities, legal and factual. '
Speaking for myself, sometimes I feel lot of difficulty when assistance or enough of it is not forthcoming. This attitude on the part of the Bench is not only understandable but also in! Well- known to the lawyers who have chance of appearing before the High Court. In the above explained process of reaching the correct conclusions involving sometimes appreciative, neutral or adverse comment, the lawyer should neither lose balance nor heart and; in either case, must in all circumstances avoid jumping into a role of an adversary, qua the Judge in this honour able and laudable task being performed by them as team mates. In other words, while hearing any comment which does hot immediately go in lieu with his argument, a lawyer should try to remind himself that it is not his duty always to win the case and in all circumstances; and conversely it is not necessary that the Judge, who is under a specific oath (while the lawyer is, technically only, not under an oath) might not agree with his point of view for good reasons. Once the counsel knows that the Judge has fully understood his point of view but has not agreed with him, it is no more his duty than to convert the Judge to his point of view either by repetitions, or assertions, or browbeating which might include losing temper and balance, or by consuming more public time by entering into irrelevant and/or frivolous 'fields. At such occasions, justified tenacity having not worked, it is more essential for him to adopt grace rather than to show valour in fire-works. And suffice it to say about the mannerconcluding his case that, once the order is announced, it should not only be shown respect but also understanding which, of course, is far different In physical manifestations than either expressed or exhibited dissatisfaction. This comment is enough only' on one basic question which some lawyers (in particular areas, spheres and circumstances) feel tempted to ignore but unmindful of the disastrous consequences including one of piling up of the pending files in all the Courts with sure damage to the cause of justice. On the related question as to the power and right of the Courts to control the arguments and deal with them in the judgments and orders in a manner which appears to them just and appropriate, there can be no serious controversy. There is no dearth of Case-law on this point, but I would like to close this comment with the citation of a Supreme Court ruling on similar subject in Yousaf A.I Khan v. The State (PLD 1971 SC 508