' Criminal Miscellaneous Nos. 4063/B of 1990, 4392/B of 1990 and 207/B of 1991 are being disposed of together through this single order as the same relate to three persons who stand accused of the same occurrence through the same F.I.R. Bearing No, 314 dated 12-8-1990 of P.S. Samanabad of district Lahore.
2. This F.I.R. Was recorded at the instance of one Amanat Ullah Khan who had alleged that he was sitting in his house at about 2-00 p.m., alongwith his other family members, when four young persons out of whom, three were armed with pistols and one was armed with a dagger, entered his house and after pointing their respective weapons at the complainant and his family members, demanded all the valuables available in the house.
3. The complainant had further divulged that his son Noman Ahmad showed courage and overpowered one of these four accused persons who was holding a revolver in his hand, at which the other three ran away from the place of occurrence. The accused who was caught at the spot disclosed his identity as Tahir Rashid of Shad Bagh and further stated that his other three companions were Gohar Majid Noshahi, Mazhar Iqbal and Zahid Manzoor, all residents of Shad Bagh, Lahore.
4. On the alarm raised, Anwar Shehzad and Waheed also reached the spot and saw the accused running away from the place of occurrence.
5. Tahir Rashid accused and a loaded revolver snatched from him, were thereafter handed over to Inayat Ali A.S.I. Of P.S. Samanabad.
6. Criminal Miscellaneous No, 4063/B-90 on behalf of Gohar Majid Noshahi accused came up before me on 20-10-1990 when notice was issued for 13-11-1990.
7. On 6-11-1990, a Criminal Miscellaneous No, 1363/M-90 came up before me for disposal which application sought withdrawal of the main petition above-mentioned, filed for the release of the petitioner, on bail.
8. On my inquiry, the learned counsel appearing in support of the said application informed me that Gohar Majid Noshahi petitioner had since been admitted to bail by Mr. Afzal Javed, a learned A.S.J. At Lahore.
9. Displeased with the conduct of the petitioner in having moved a learned A.S.J. For his release on bail during the pendency of his bail application before this Court, I issued notice to the petitioner to show cause why the bail secured by him from the Court of the learned A.S.J. Be not recalled?
10. I also requisitioned the record from the Court of the said learned A.S.J. Relating to the grant of bail to the said petitioner and adjourned the matter to 13-11-1990.
11. On the said date, the record revealed that the learned A.S.J. Had, through his order dated 1-11- 1990, admitted the said petitioner to interim bail after arrest till 13-11-1990.
12. The learned counsel submitted before me that the petitioner had decided not to press his petition for bail before the learned A.S.J. And had in fact surrendered himself back to the custody of the police and consequently prayed that his petition filed in this Court be decided on merits.
13. These facts were noticed by me in my order dated 13-11-1990 passed in Criminal Miscellaneous No, 4296/CB-90 which was a matter, numbered and listed separately in respect of the above- mentioned notice issued by me for the recall of the bail allowed to Gohar Majid Noshahi petitioner by the learned A.S.J.
14. During the course of the proceedings on that day, it also came to my notice that one Mazhar Iqbal, a co-accused of Gohar Majid Noshahi petitioner had also been admitted to bail by the same learned A.S.J. Of Lahore on 22-10-1990.
15. A notice was issued to the said Mazhar Iqbal also to show cause why the bail allowed to him by the learned A.S.J. Be not recalled?
16. This cancellation of bail matter is now the subject-matter of Criminal Miscellaneous No, 4392/B- 90.
17. During the pendency of these two matters, another co-accused of Gohar Majid Noshahi, namely, Tahir Rashid also moved this Court for his release en bail and the same is the subject- matter of Criminal Miscellaneous No, 207/B-91.
18. As has been mentioned above, since the bail allowed to Gohar Majid Noshahi petitioner by the learned A.S.J. Was an interim bail after arrest which was to enure only upto 13-11-1990 and which bail petition before the A.S.J., the said Gohar Majid Noshahi petitioner had decided not to press and had in turn surrendered back to custody, therefore, the notice, for cancellation of this bail had become infructucus and the matter was disposed of through my above-mentioned order dated 13-11-1990 passed in Criminal Miscellaneous No, 4296/CB-90.
19. Criminal Miscellaneous No, 4063/B-90 filed originally in this Court seeking Gohar Majid Noshahi petitioner's release on bail is now being pressed and being decided on merits.
20. Mr. Bashir Ahmad Malik and Mr. Shamas Mehmood, Advocate, appearing in support of this petition submit that the petitioner had been falsely implicated in this case, that the story narrated in the F.I.R. Did not inspire confidence; that it was not believable that an un-armed inmate of the house would manage to overpower an alleged robber who was armed with a revolver and whose three companions were also armed with fire-arms and a dagger; that no identification parade had been held to determine the identity of the accused persons; that Gohar Majid Noshahi petitioner had been involved only on the statement of a co-accused, namely, Tahir Rashid which statement was not admissible in evidence; that the dagger with which Gohar Majid Noshahi was allegedly armed at the time of occurrence was not recovered at his instance but had in fact been produced by one Jamil and finally that despite a lapse of about five months, the challan against the petitioner had still not reached the Court.
21. As has been noticed above in detail, the conduct of Gohar Majid Noshahi petitioner disentitles him from any relief in equity.
22. His first application for bail, filed in the Court of Session, was dismissed by Ch. Muhammad Nawaz, A.S.J. On 18-9-1990 against which order, the petitioner had approached this Court through the present petition.
23. Without disclosing the fact that his earlier bail application had been dismissed by another learned A.S.J. And without also disclosing that he had moved the High Court for his release on bail, Gohar Majid Noshahi petitioner filed a fresh petition in the Court of Session which, this time, got entrusted to Mr. M.Afzal Javed, A.S.J. Who released him on interim bail after arrest the very next day of filing this petition.
24. This conduct of the petitioner is by itself sufficient to refuse any discretionary relief which he may be seeking from this Court. His petition bearing Criminal Miscellaneous No, 4063/B-90 is, therefore, dismissed.
25. I may add here, that it pained me to notice that the learned counsel who had moved the second bail application before the learned A.S.J. During the pendency of the petition before this Court, was the same learned Advocate who had filed the present bail application before this Court.
26. There is nothing, at least on the record, to indicate that the learned counsel had taken the learned A.S.J. Into confidence about the dismissal of earlier bail application of the accused in question by another learned A.S.J. Or about the pendency of his bail petition before this Court.
27. Such a conduct of the learned counsel deserves condemnation.
28. He has expressed sincere remorse; has withdrawn from this case, has tendered apologies and has undertaken to be careful in future.
29. I have, in the circumstances, decided not to proceed against the learned Advocate. But I do feel obliged to record that such an act on the part of a learned counsel is not only an act of gross professional misconduct but is also an act calculated to subvert the course of justice culpable under the Contempt of Court Act.
30. In view of the conduct of learned counsel, noticed above, no exception can be taken to the entertainment and adjudication of the bail matter in question by Mr. Afzal Javed, A.S.J., but the manner in which he dealt with this bail petition does require a comment.
31. This application was filed on 30-10-1990 and was marked to Mr. MAfzal Javed, A.S.J., the same day, who took cognizance of the same and issued notice for the very next day. i.e, for 1-11-1990.
32. On the said date, the learned A.P.P. Was present with a head Constable who was equipped only with the register of F.I.R. And it appears that the record of the case/the police file etc. Was not available with him because it was through the order passed on that day that the record was directed to be produced on the next date of hearing which was fixed as 13-11-1990 and while so adjourning the matter, the learned A.S.J. Admitted the accused petitioner to interim bail after arrest.
33. The reason for the haste in which the notice was issued by the learned A.S.J. For the next day and then the adjournment of this bail matter to 13-11-1990 is not understandable. Incomprehensible is also the reason why the petitioner was admitted to interim bail after arrest. If the same was on account of the absence of record, then the same could have been summoned for a date earlier than 13-111990 for an expeditious disposal of the bail matter and in any case, if the record was not available and the learned A.S.J. Did not know anything about the facts, and the circumstances of the case, then there was no occasion for admitting the petitioner to bail even if the same was an interim bail.
34. The accused in question stood burdened with an attempted armed robbery in which an armed co-accused of the petitioner had been arrested on the spot. The matter of bail of this accused person thus deserved a more serious treatment than the one received by it.
35. Releasing an accused person on post-arrest bail, be it interim or otherwise, without even looking at the police file, on the ground that a co-accused had already been admitted to bail, is adopting an unsafe course of administration of justice, because there is always the possibility that the material collected during investigation may well have made the case of the Jwo accused persons, absolutely distinguishable.
36. Needless also to repeat the oft-quoted/but a cardinal principle of administration of justice that justice is not only to be done but it must also appear to have been done.
37. I regret to observe that the above-noticed haste and the manner in which a person accused of an attempted robbery was released on interim bail after arrest is far from satisfactory and must be disapproved.
38. I have lately noticed cases where on being refused bail once, the accused persons are being admitted to bail, by successor Presiding Officers and at times even the same Presiding Officers, in complete derogation of their ealier findings and without any fresh grounds having appeared or accrued in the meantime.
39. I have also noticed cases, other than the present case, where during the pendency of bail petitions before the High Court, the subordinate Courts are approached for the same relief and after securing bail from the lower Courts, the petitions before the High Court are either withdrawn or are allowed to be dismissed for non-prosecution.
40. Such-like practices are attaining alarming proportions and deserve to be strictly noticed and catered for.
41. From some of the bail applications filed in the Courts of Session, it appears that a certificate is required to be given by the advocate presenting an application for bail regarding earlier applications filed on behalf of the concerned accused persons before the said Court.
42. But this certificate is inadequate.
43. It is, therefore, directed that, in future, the learned Courts of Session and the learned Magistrates shall insist upon a certificate in each bail matter, in the following terms:--
(a) the information whether any bail application by the concerned accused or any of his co- accused was or was not earlier filed before the said Court;
(b) in case any such application was earlier filed, then the result of the same;
(c) the information whether any application was earlier filed by the concerned accused person before any Court and if so, then the fate of the same;
(d) whether any petition seeking release of the accused person in question is pending adjudication before any other Court including the higher Court or Courts;
44. A copy of this order shall be placed before My Lord the Chief Justice for His Lordship's information and for issuance of such instructions in the matter as His Lordship may deem necessary but till such instructions are issued, all the subordinate Courts shall ensure strict compliance of the directions contained in the above paras.
45. The petitions for bail filed by Gohar Majid Noshahi and Tahir Rashid, as has been mentioned above, were dismissed by Ch. Muhammad Nawaz, A.S,J. On 18-9-1990 and 9-9-1990 respectively after an elaborate discussion on the facts and the merits of the case.
46. Mr. M. Afzal Javed, A.S.J. However, released Mazhar Iqbal petitioner on bail on 22-10-1990 only on the ground that no dacoity had actually been committed and that the act of the petitioner and his co-accused was at most punishable under section 393, P.P.C., the sentence of which was seven years which took the petitioner's case out of the purview of the prohibitory clause of section 497, Cr.
P.C.
47. The fact that the case of an accused person did not fall within the prohibitory clause of section 497, Cr.P.C., did not automatically entitle the accused person to be admitted to bail, as of right. It only indicates that there was no prohibition or bar in admitting the concerned accused person to bail. He, nevertheless, remains accused of a non-bailable offence and the question whether the said accused should or should not be admitted to bail continues to remain a discretionary matter to be decided by the Court in accordance with the established principles regulating the subject.
48. Needless to say that in the exercise of such a discretion, the allegations levelled against the accused persons and their conduct are relevant considerations.
49. The petitioner and his co-accused in the present case are young boys. They are alleged to have trespassed into the house of the complainant while armed with fire-arms and a dagger, in order to commit dacoity.
50. The learned counsel appearing for the accused persons have not been able to offer any explanation as to why the accused persons, who were all residents of Shad Bagh, should have been falsely implicated by the complainant in the present case. They have apparently no connection with the complainant party and nothing has been pleaded even to suggest malicious involvement of the accused persons on account of any enmity or ill-will.
51. Similar is the position of Tahir Rashid petitioner in Criminal Miscellaneous No, 207/B-91. He is the one who was caught and arrested at the spot and has no explanation of being in the complainant's house in Samanabad.
52. The submission that an armed person in the presence of armed companions could not have been overpowered by one of the inmates of the house, is not a rule to which there can be no exceptions.
53. The submission that the statement of a co-accused could not be used against his co-accused persons is a submission which is legally ill-based and untenable. In any case, the admissibility or the evidentiary value of such a statement is a matter which can be determined only at the trial and not at the present stage.
54. In this view of the matter, Criminal Miscellaneous No, 207/B-91 filed on behalf of Tahir Rashid accused is dismissed and in pursuance of Criminal Miscellaneous No, 4392/B-90, the bail allowed to Mazhar Iqbal by a learned A.S.J. Through his order dated 22-10-1990 is recalled.
55. As has been noticed above, the earlier bail applications of Tahir Rashid and Gohar Majid Noshahi accused were handled and disposed of by Ch. Muhammad Nawaz, A.S.J. Who remained posted in Lahore till 6-12-1990. The subsequent bail applications of Gohar Majid Noshahi and Mazhar Iqbal accused, however, got entrusted to Mr. M. Afzal Javed, A.S.J. While Ch. Muhammad Nawaz, A.S.J. Was still available at Lahore.
56. The learned Sessions Judges, while distributing business should ensure that in future the dictum laid down in Zubair's case by the Supreme Court is followed strictly even by the Subordinate Courts at least in cases where the Presiding Officers who earlier dealt with the bail petitions of the accused persons or their co-accused are still available at the same station.
57. Copies of this order shall be sent to all the learned Sessions Judges in the Province who shall circulate the same to all the learned Courts exercising jurisdiction under Cr.P.C., in their respective Sessions Divisions.