1. ' RASHEED AHMED RAZVI, J.---The applicants/accused Muhammad Aslam and Muhammad Ashfaq have filed these bail applications arising out of Crime No,51 of 1995 of P.S. Phulli, District Hyderabad, under sections 436, 437, 147 and 148, P.P.C. And now they are facing trial before the Special Court No,1 (Suppression of Terrorist Activities), Hyderabad.
2. ' The F.I.R. Was lodged by one Assistant Telecom Operator in Railway Micro Exchange, namely Muhammad Siddiq on 5-6-1995 at about 23-50 hours stating therein that the said complainant was on night duty on the date of F.I.R. That at about 10-30 p.m. Somebody knocked at the outer door. That on inquiry by the complainant, he was told in Urdu that somebody has died and his relatives want to convey information at Tando Adam. That upon hearing such statement, the complainant opened the door whereafter five persons entered. Three of them were having T.T.
3. Pistols while two persons were having bottles in their hands. That all these five persons warned the complainant not to raise any cry. The two persons threw petrol at various places of the Telephone Exchange from the bottles and set it on fire. It is further alleged that after reading some files they put those files on fire. As a result of such act, it is alleged in the F.I.R. That one D.C.D. Unit, three Microwave Transmitters, four Microwave Receivers and four covers of Air-Conditioners were totally burnt and damaged. The complainant then went to the main station and informed his Senior A.T.E., who, after inspecting the place of incident, directed the complainant to lodge the F.I.R.
4. ' We have heard M/s. Zahoor Ahmed Baloch and Shafi Muhammad Pirzada, Advocates for the applicants/accused and Mr. Abdul Latif Ansari, Assistant Advocate-General, Sindh for the State. We have also perused the police files. It is argued on behalf of the accused/applicants that their names do not appear in the F.I.R. Nor any description as to their physique were disclosed. That no recovery of any incriminating article was effected from them. It is further argued that after their arrest these accused were not put to identification test. That another co-accused namely Shahzad son of Kabir Ali has been granted bail by this Court in Criminal Bail Application No,380 of 1995 who is also placed in the similar and identical circumstances. The learned Assistant Advocate-General, Sindh has vehemently opposed grant of bail on the grounds that accused Muhammad Aslam has admitted his guilt before the Deputy Superintendent of Police, Hyderabad. That the prosecution witnesses have implicated both the accused/applicants in their 161, Cr.P.C. Statement. That the case is expeditiously proceeding before the trial Court and grant of bail at this stage would enable the accused persons to tamper with the prosecution evidence.
5. This Court has granted bail to co-accused Shahzad son of Kabir Ali vid e its order, dated 24-10-1995 in Criminal Bail Application No,380 of 1995. This bail was granted on the principle of consistency as another co-accused namely Shaukat Ali was granted bail by the trial Court. Therefore, this Court came to the conclusion that since co-accused Shahzad was placed in the similar circumstances, he was also entitled to grant of bail. Following is the relevant observation: "Once the learned trial Judge on a tentative assessment of the evidence had granted bail to co- accused Shaukat the case of the present applicant being at par with the said co-accused, the bail should not have been refused. Accordingly following the law laid down in Muhammad Fazal alias Bedi v. The State 1979 SCM R 9, Abdul Sattar v. The State 1982 SCM R 909, Khadim Hussain v. The State 1983 SCMR 124, Walayat and another v. The State 1984 SCM R 530 the applicant/accused is admitted to bail in the sum of Rs,10,000 (Rupees Ten thousand only) with one surety and P.R. Bond in the like amount to the satisfaction of the trial Court."
6. ' For further reference see the case of Abdul Salam v. The State 1980 SCM R 142 and the case of Yousaf v. The State 1983 SCMR 102.
7. ' We are unable to understand the conduct of learned Presiding Officer of Special Court No,1 (Suppression of Terrorist Activities), Hyderabad in this case. In the instant case, both the learned counsel appearing for the accused/applicants referred to the order of this Court in Criminal Bail Application No,380 of 1995 which the learned Special Judge has also noted in his order dated 27-11- 1995 and despite that he rejected the bail applications. The learned Presiding Officer should have followed the law laid down by the Hon'ble Supreme Court in the above-cited cases as well as by this Court in the case of Shahzad v. The State (Criminal Bail Application No,380 of 1995). Such conduct is not expected from a Judicial Officer. Even in the previous order another Division Bench of this Court comprising Mr. Justice Dr. Ghous Muhammad and Mr. Justice Ghulam Haider Lakho, JJ.
8. Have observed as follows: "After going through both the orders we are constrained to observe that the reasons for rejecting the bail application quoted above are totally perverse. This shows his lack of application of judicial mind. It is quite surprising that as was rightly pointed out by the learned A.A.-G. Evidence against both the accused is the same, therefore, instead of following the rule of consistency and the guideline provided by the superior Courts the trial Judge had chosen to adopt different standards for rejecting the application of the applicant/accused and for allowing the bail application of the co-accused."
9. The conduct of the learned Presiding Officer in not following the rule laid down by this Court in Criminal Bail Application No, 380 of 1995 and by not following the law laid down by the Supreme Court is contemptuous and also amounts to misconduct. The Presiding Officer of STA-I Hyderabad was fully aware of the order of this Court and it is equally presumed that he should know the law laid down by the apex Court of the country. This tendency of the Judges of the subordinate Courts was noted by the Hon'ble Supreme Court of Pakistan in the case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 where it was held by a Full Bench that under Article 189 of the Constitution, 1973, all decisions of the Supreme Court enunciating principle of law is binding on all Courts and a warning was conveyed to the Judges of the subordinate Court including Magistrates/Assistant Commissioners/Additional District Judges/District Judges to the extent that they are legally bound to follow the principles of law laid down by the Supreme Court. We have experienced in the recent past that the learned Presiding Officers of the Special Courts (Suppression of Terrorist Activities) are not paying due respect to the principle enunciated by the Superior Judiciary in Pakistan. Here, we would like to quote another rule laid down by the Hon'ble Supreme Court in the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 where it was held that all the Courts in the country should exercise utmost care and caution while dealing with the life and liberty of citizens in view of the well-known Ahadis of the Holy Prophet (peace be upon him). It was further held that the slight carelessness on the part of the Courts may deprive the accused person/ citizen of his life and may cause irreparable hardship and damage to his family. In our considered view the accused persons in the present case have suffered great hardship and inconvenience due to the act of learned Presiding Officer in not following the law laid down by the Supreme Court of Pakistan.
10. ' In the above-stated circumstances we would like to direct the Assistant Registrar of this court to forward a copy of this order to the Chief Secretary to Government of Sindh, Karachi as well as to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad for necessary action as provided under law.
11. Following the rule of consistency, we are of the view that the present applicants/accused are also placed in similar and identical circumstances and, therefore, are entitled to the same treatment as extended to the other accused. Consequently, this bail application is accepted. Both the applicants/accused shall be released upon furnishing surety in the sum of Rs,10,000 (Rupees ten thousand only) each with P.R. Bond in the like amount to the satisfaction of the trial Court.