' One Dost Muhammad had been allegedly waylaid and assaulted on 17-6,1991 in the area of Police Station Sarai Mohajir. On medical examination, he was found to have received as many as fifteen injuries on various parts of his body out of which, two had been declared as grievous. Through an F.I.R. Bearing No,24/91 of the said police station, the said Dost Muhammad had accused Ahmed, Suleman, Anwar, Sultan, Ramzan, Iqbal and Wazir of having caused these injuries.
2. All the seven accused persons approached the learned Sessions Court on 19-6-1991 i,e. On the very next day of the registration of the aforementioned F.I.R. And having been admitted to interim pre-arrest bail, their said application was finally dismissed on 2-7-1991 by Khan Talib Hussain Baluch, a learned Additional Sessions Judge at Bhakkar.
3. However, after the dismissal of the said application it had been mentioned in the last three lines thereof that Suleman and Ahmad accused had sought to withdraw the bail petition to their extent and the bail plea of these two accused persons was, consequently, being dismissed as withdrawn.
The operative paragraph of the said order dated 2-7-1991 is reproduced below:- "I have heard the learned counsel for the parties and have perused the record. It is an application for pre-arrest bail. The complainant received as many as 15 injuries on different parts of his body including two grievous injuries. It is not shown to me that for some ulterior motive any of the petitioners has been involved in this case. It is not fit case for pre-arrest bail, therefore, the application is dismissed. As far as petitioner Suleman and Ahmad Khan are concerned the learned counsel has withdrawn the application to their extent. Accordingly the application to their extent is dismissed as withdrawn."
4. It appears that five of the above-said accused persons, namely, Anwar, Sultan, Ramzan, Iqbal and Wazir surrendered themselves to custody and then petitioned the learned Illaqa Magistrate for their release on bail after arrest and were accordingly allowed bail on 11-7-1991 i,e. Within nine days of rejection of their pre-arrest bail, on merits, by a learned Additional Sessions Judge.
5. Dost Muhammad complainant applied for cancellation of the said post-arrest bail but Khan Talib Hussain Baluch, the said learned Additional Sessions Judge refused to recall the same through his order dated 9-10-1991.
6. The said complainant has now approached this Court through Criminal Miscellaneous No,4383/B of 1991, for the same purpose.
7. The other two accused persons, namely, Ahmad Khan and Suleman did not offer their arrest after withdrawing their above-mentioned bail before arrest petition on 2-7-1991 and instead elected to petition the learned Sessions Court, afresh, for their admission to pre-arrest bail which was done on 8-7-1991 i,e. Within six days of the dismissal of their earlier petition seeking the same relief.
8. The same learned Presiding Officer i,e. Khan Talib Hussain Baluch, Additional Sessions Judge, once again, admitted these two accused persons to interim pre-arrest bail on 8-7-1991; issued notice to the State and summoned the record for 16-7-1991.
9. On the said date, Ghulam Rasool, S.I. Was present with record in compliance with the above- mentioned order but the learned Additional Sessions Judge adjourned the matter to 27-7-1991 after directing some learned counsel to produce a certified copy of the said learned Additional Sessions Judge's previous order passed in the first bail application which he had, himself, rejected. The interim bail was obviously extended till the next day.
10. On 27-7-1991, the S.I. Was again present with record but the learned Presiding Officer was on summer vacation and the matter was adjourned to 15-8-1991.
11. The said date i,e. 15-8-1991, happened to be a public holiday and the matter instead came up before the learned Additional Sessions Judge on 17-8-1991 when the record was not available for the obvious reason that no one was under notice to produce the same on the said date as the date earlier fixed was 15-8-1991. The matter was consequently, adjourned to 20-8-1991 after extending the interim bail.
12. Surprisingly enough, a show-cause notice was issued to the S.H.O. For having defaulted in production of record on the above-mentioned date, for which notice, no reason existed on record.
13. The record was not produced on 20-8-1991. The petition was adjourned to 25-8-1991 and a show-cause notice was once again directed to be issued to the S.H.O., through the S.P. Of Bhakkar.
14. On 25-8-1991 the record was again not available and the learned Additional Sessions Judge proceeded to confirm the interim bail already allowed to the above-mentioned two accused persons, primarily on the ground that record had not been produced and after so confirming the said pre-arrest bail, the learned Additional Sessions Judge directed issuance of a fresh show- cause notice to the S.H.O. Through the D.I.-G. Of Sargodha and for the purpose of proceedings against the said S.H.O., the matter was adjourned to 5-9-1991.
15. On the said date, the learned Additional Sessions Judge was on leave whereafter, the matter of the notice to the S.H.O. Came up before him on 15-9-1991. No one was present on the said date. The learned Additional Sessions Judge appears to have forgotten the entire matter and dismissed the same for non-prosecution.
16. Aggrieved by the grant of this pre-arrest bail to Ahmad and Suleman accused, Dost Muhammad complainant approached this Court through Criminal Miscellaneous No,3426/B of 1991 for cancellation of the same.
17. This application came up before me on 28-10-1991 when the learned counsel for the complainant-petitioner opted to withdraw the same in order to enable the petitioner to take up approrpriate proceedings at the appropriate stage.
18. This petition was disposed of as withdrawn.
19. Nevertheless, I directed issuance of a notice to Ghulam Rasool S.I. Who was the S.H.O. Of the concerned police station at the relevant time to show cause why he had defaulted in production of record before the learned Additional Sessions Judge. I also asked the D.I.-G. Of Sargodha and the S.P. Of Bhakkar to submit their respective reports about the action taken by them against the said S.H.O.
20. The matter concerning the notice issued by me to the S.H.O. Is now before me as Criminal Original No,78 of 1991.
21. The above-said D.I.-G. And the S.P. Submitted their reports which are dated 21-11-1991 and 23-11- 1991, respectively.
22. In the meantime, Dost Muhammad complainant filed a fresh application seeking cancellation of the pre-arrest bail allowed to Ahmad Khan and Suleman accused. This is Criminal Miscellaneous No,4384/CB of 1991.
23. All these matters i,e. Criminal Miscellaneous No,4383/B of 1991, No,4384/CB of 1991 and Criminal Original No,78 of 1991 are being disposed of together through this single order.
24. I will first take up the matter relating to the cancellation of pre-arrest bail allowed to Ahmad Khan and Suleman accused.
25. As has been noticed above, all the seven accused persons, including Ahmad Khan and Suleman had sought their release on pre-arrest bail through an application filed by them on the very next day of the registration of the F.I.R. And having remained on interim pre-arrest bail for about two weeks, their petition was finally dismissed by the learned Additional Sessions Judge on 2-7-1991.
26. It was after the dismissal of the said petition on merits that Ahmad and Suleman Khan prayed for permission to withdraw the said petition to their extent which prayer was accordingly allowed though no justification existed for such a permission as the learned Additional Sessions Judge had already decided, on merits, the bail application to which the said two accused persons were also a party.
27. It is true that Ahmad and Suleman accused were, strictly, technically speaking, not precluded from bringing a fresh petition for their release on bail but it is a sad reflection on the conduct of the judicial officer, who having once refused bail, on merits, again, admitted these accused persons to interim pre-arrest bail only six days after rejection of their earlier application and that also without any fresh ground having accrued in the meantime justifying such an action.
28. The manner and the basis on which this interim bail was confirmed, was also open to serious exception.
29. Be that as it may, the matter was adjourned to 16-74991 and on the said date the counsel for the accused persons was present; counsel for the complainant was also present and Ghulam Rasool S.I. Was present with record alongwith the A.DA. For the State but the learned Additional Sessions Judge found it convenient not to decide the matter and to adjourn the same on the pretext of asking some counsel, who does not stand identified in the order in question, to produce a certified copy of the earlier bail refusing order passed by him. Needless to mention that the earlier bail refusing order was a part of record of the said learned Additional Sessions Judge's own Court and no justifiable reason existed on record to adjourn the matter on such a flimsy ground when the said order was available to the said learned Presiding Officer being a part of his own Courts' record.
30. Likewise no reason existed on 17-8-1991 for the learned Additional Sessions Judge to issue a show-cause notice to the S.H.O. On account of non-production of record because the matter had been adjourned to 15-8-1991 for which date, the record had been summoned. However, it is true that the record had not been produced before the said learned Court on 20-8-1991 and 25-8-1991.
31. If such a situation is permitted to become a valid basis for releasing the accused persons on bail, the same would not only be offensive of the law regulating the subject but would also lead to anarchy in the administration of justice.
32. The learned Additional Sessions Judge failed to remember that administration of justice was the obligation of the Court of law and this function could not be abdicated in favour of the petty police officials who could manoeuvre grant or refusal of bail to the accused person by the mere presence or absence of the record.
33. It must be remembered that investigation agencies and the police officers are mere instruments provided to the Courts of law to administer justice. The administration of justice cannot be permitted to be thwarted only because these instruments had got blunted when the law had vested sufficient powers with the Court of law to chisel these tools. The learned Additional Sessions Judge had sufficient powers to coerce the availability of the record if he considered the same inevitable for the disposal of the lis before him.
34. I must record here that the learned Presiding Officer had taken no steps to ensure availability of the record when he could have directed the State representative i,e. The ADA. Who was present before him at all times, to do the needful.
35. In any case, not only that a copy of the F.I.R. Was available alongwith the bail petition but the learned Additional Sessions Judge even had access to the record of his own Court relating to the dismissal of an earlier similar bail plea of the accused persons and only if the learned Additional Sessions Judge had taken the trouble of going through the above-mentioned record which was with him, the learned Additional Sessions Judge would not have fallen into the error which he did by admitting the accused persons in question to pre-arrest bail.
36. Needless to mention here that Suleman accused was the one who had been attributed two specific Lathi blows on the head and the chest of the complainant while Ahmad accused was the one who had initiated the proceedings by raising a Lalkara and then stood saddled with infliction of injuries on the person of the complainant alongwith his other co-accused persons.
37. Admitting these two accused persons to bail before arrest in view of these facts which were before the learned Additional Sessions Judge and in the manner abovenoticed, to say the least, was a reckless exercise of judicial powers vesting in the said learned Court.
38. In view of what has been discussed and noticed above, the pre-arrest bail allowed to Ahmad Khan and Suleman accused through an order dated 25-8-1991 by a learned Additional Sessions Judge at Bhakkar, is recalled. Criminal Miscellaneous No,4384 is thus allowed.
39. This brings me to the disposal of Criminal Miscellaneous No,4383/B of 1991, which prays for cancellation of bail allowed to Anwar, Sultan, Ramzan, Iqbal and Wazir accused.
40. As has been noticed above, these accused-respondents had petitioned the learned Additional Sessions Judge for their admission to pre-arrest bail which had been disallowed on 2-7-1991. They offered their arrest and then approached the learned Illaqa Magistrate for their release on bail after arrest and were so allowed bail on 11-7-1991 i,e. Within nine days of the rejection of their petition for pre-arrest bail. The order dated 2-7-1991 of the learned Additional Sessions Judge demonstrates that the respondents' plea for bail before arrest had been disallowed on merits.
41. In the circumstances, the norms and dictates of propriety should have ordinarily persuaded the learned Illaqa Magistrate not to release these petitioners on bail which relief could have been granted by the said Magistrate only after he had reached the conclusion, on merits, different from the conclusion reached by a superior Court i,e. The learned Additional Sessions Judge. Needless to mention that no new grounds had emerged between the rejection of the pre-arrest bail plea by the learned Additional Sessions Judge and the day on which the learned Illaqa Magistrate admitted the respondents to bail.
42. Technically, it may be true that rejection of a pre-arrest bail application was no bar for the grant of a post-arrest bail plea but it will be noticed that for grant of bail before arrest the conditions mentioned in section 497, Cr.P.C. Need to be satisfied and in addition thereto, the requirement of malice should also be satisfied. In the matters of grant of post-arrest bail, however, malice is no condition precedent. The inference thus is that if pre-arrest bail had been disallowed on account of non-fulfilment of the requirements of malice, only then grant of bail after arrest on merits by a lower Court would perhaps be not in violation of any command of law or propriety. But if a superior Court has dismissed a pre-arrest bail petition on merits then of course the lower Courts shall stand precluded from accepting the post-arrest bail petition of the said accused person.
43. Thus the discretion exercised by the learned Illaqa Magistrate in releasing the abovenamed respondents on bail on 11-7-1991, when the learned Additional Sessions Judge had dismissed their pre-arrest bail petition on merits, is open to serious exception.
44. Nevertheless these accused persons have been on bail for about ten months. No specific injuries of any serious nature stands attributed to them nor is there any definite allegation of misuse of the concession of bail against them. In the circumstances, I would, rather reluctantly, refuse to cancel the bail allowed to them. Criminal Miscellaneous No,4383/B of 1991 is, therefore, dismissed.
45. Notices had been issued to the police officers of Police Station Sarai Mohajar to show cause why they should not be punished for not having obeyed the orders of the learned Additional Sessions Judge regarding the production of the record in question before him. They have submitted their replies and have been heard. Nothing exists on record which could prove that any such direction had reached these police officers. The notices issued to them are, therefore, discharged.
46. As has been noticed above, the conduct of Khan Talib Hussain Baloch, Additional Sessions Judge, then posted at Bhakkar, in allowing pre-arrest bail to Ahmad Khan and Suleman accused is the kind of conduct which is far from being appreciable. His conduct, in the said matter, is deprecated.
47. Copies of this order shall be sent to Khan Talib Hussain Baloch, Additional Sessions Judge, wherever he be posted as also to the learned Illaqa Magistrate who had released the respondents in Criminal Miscellaneous No,4383/B of 1991 on bail, for their information and further guidance.
48. The above observations of this Court regarding the conduct of Khan Talib Hussain Baloch, Additional Sessions Judge shall be placed on his service book and copies of this order shall also be conveyed to the Honourable Inspecting Judge of the said District and to the Sessions Judge of Bhakkar.
49. Criminal Miscellaneous No,4383/B of 1991, Criminal Miscellaneous No,4384/CB of 1991 and Criminal Original No,78 of 1991 are disposed of in the above terms.