JUDGMENT SH. SHAFI MUHAMMADI, J.- Applicant Rafiq Ahmed Jilani is an accused in a case arising out of an FIR No. 89/94 registered at A.C.E. Police Station on 26.10,1994 as a result of an enquiry regarding complaint No. GO-77/94 ACE Karachi lodged by Sub-Inspector Muhammad Ismail Abbasi in respect of an additional piece of land measuring 1160 Sq. Yards which was going to be allotted to M/s. Leader Developers, allegedly, unlawfully. Although, the alleged attempt of allotment is stated to have been done in May/June 1994, but with no mention of specific date in the FIR yet it has been stated by the complainant on 26.10.1994 in column No. 5 of the FIR that no delay has taken place.
2. Prosecution story as narrated by Inspector Muhammad Ismail Abbasi in the FIR reveals that M/s. Leader Developers is an approved firm K.D.A, for FI. Site. This firm succeeded to get allotment of Plot No. FL-1/5-E, measuring one acre (4840 Sq. Yards) in North Karachi Township with the approval of competent authority vide allotment order No. K.D.A./L & E/G U L/CC/94/109 dated 6.6.1994. It was further alleged in the FIR that in spite of ban on the allotment, officers of K.D.A, conspired and prepared Site Plan of 6000 Sq. Yards instead of 4840 Sq. Yards, so that additional piece of land, attached with the said plot be also allotted to the above/named Builders.
On the other hand, K.D.A, officials, made accused in this matter, contended that according to rules, competent authority K.D.A, had powers to allot additional piece of land to an allotee if the same is attached with already allotted land and, provided, the area of such piece of land is not more than 25%. As 25% of the acre of allotted land in equal to 4840 'A = 1210 Sq. Yards, hence allotment of (6000 - 4840) 1160 Sq. Yards of attached land was not an act which could attract any of the Sections mentioned in the FIR.
3. Charge sheet of this case was submitted on 10.11.1994 by the same * Inspector/I.O. With the words "incomplete" on its face and it contains two sets of accused persons, One set consists of five accused belonging to M/s. Leader Developers and the second set consists of seven officials of K.D.A. Out of these twelve accused persons, (1) Abu Bakar Sheikhani, (ii) Muhammad Hanif Sheikhani and (iii) Mst. Khairun Nisa belonging to the first set and (iv) Rafiq Ahmed Jilani, (v) G.M.
Qadri, (vi) S. Siddique (vii) Naveed Alam from the second set were shown absconders. The remaining five accused namely (i) Rashid Aqeel, (ii)'.Taj Muhammad, (iii) Murad Ali Junejo (from the second set ), (iv) Moshin Abu Bakar and (v) Muhammad Younus (from the first set) moved their bail applications bearing No. 116/94 and 117/94 respectively before the Court of the Special Judge Anti-Corruption (Provincial) Karachi.
The learned Special Judge dismissed the bail application No. 116/94, of the K.D.A, officials but on the same set of evidence allowed bail application No. 117/94, of accused belonging to M/s. Leader Developers. The present applicant Rafiq Ahmed Jilani, one of the K.D.A, officials, moved application for anticipatory bail when he came to know at Hyderabad that his name was also included in the FIR. Interim bail was granted to him and when this matter. Was tabled before me at Karachi, I considered it proper, before passing any final order to find out why bail application No. 116/94, moved on behalf of the K.D.A, officials was dismissed and bail application No. 117/94, moved for the main beneficiaries, who are well- known builders, was allowed by the learned Special Judge, Anti- Corruption by passing two orders on the same day especially when there was same set of evidence against both sets of accused persons. The learned Advocate for the present applicant namely Rafiq Ahmed Jilani stressed that as there was no difference between the cases of any of the accused persons, therefore, the learned Special Judge could be justified to refuse bail of K.D.A, officials if he had refused bail to the main beneficiaries. On account of the alleged conduct of the learned Special Judge the present applicant did not dare to move anticipatory bail before the Trial Court as soon as he came to known at Hyderabad that his name was also included in the FIR and, therefore, he directly approached the High Court.
No doubt the High Court has concurrent and co-extensive jurisdiction u/S. 498, Cr.P.C, to grant to refuse anticipatory bail to any of the accused but proper forum for moving such applications is the Trial Court. The High Court can and should exercise its powers to entertain such applications only in cases of special nature under unavoidable circumstances especially when it seems to be must necessary in the interest of justice. When the learned Advocate, for the applicant was asked why he did not approach the Trial Court to seek the same remedy, he stated that as the Trial Court had granted bail to the main beneficiaries but, on the same set of evidence, refused bail to the K.D.A, officials with the result that they were sent to jail, so he could not take the risk to put the applicant in the same situation. The learned Advocate drew my attention to the following observations of my learned brother Ali Muhammad Baloch, J. Who had granted bail to some of the co-accused: "The applicants are also entitled to be released on bail on the principle of consistency and in this respect the case of Abdul Salam v. The State reported in 1980 S.C.M.R. 142, in relied upon."
Although these lines were sufficient to support the contention of the learned Advocate for the applicant yet, for my further satisfaction, I considered it necessary to call the I.O. Of the case as well as report from the learned Special Judge to find out whether there was any difference between the cases of K.D.A, officials, including the present applicant, and the main beneficiaries.
5. Mr. Amir Hani, the learned A.A.G, appeared before this bench on 12.1.21994 and on 18.12.. 1994 accompanied with Ghulam Hussan Memon, P.D.S.P. And I.O. Muhammad Ismail Abbasi alongwith the record of the case but nothing could be shown by any of them from the record, in the light of which, it could be said that "Principle of consistency was not applicable to all the accused persons" or there was such proposed evidence on account of which granting bail to the main beneficiaries and refusing bail the K.D.A, officials, on the same set of evidence and on the same day, by the learned Special Judge was justified. The learned A.A.G, sought adjournment on 18.12.1994 to go through the record and he matter was adjourned to 22.12.1994. It was also informed by the learned A.G. That P.D.S.P. Had apposed the grant of bail to main beneficiaries before the Trial Court and the State is considering to move an application for cancellation of their bail after the report was called by this bench. Today Syed Amjad Ali Shah, the learned A.A.G, appeared on behalf of the State, instead of Mr. Amir Hani Mulaim alongwith Inspector Muhammad Ismail Abbasi. The learned A.A.G, strenuously opposed bail to the present applicant by saying that the applicant was serving at higher position as compared to other officials of the K.D.A. Who were granted bail by the High Court.
The learned A.A.G, also alleged that it was only due to the present applicant's instruction that all other sub-ordinate officials were going to commit the offence mentioned in the FIR, for getting unlawful gains from the builders.
6. The submissions advanced by both the learned A AGs on different dates have no force because refusing or granting bail does not depend upon the status of person. All citizens have to be dealt according to law equally without taking into consideration their case, colour, creed or status. The K.D.A, officials who were granted bail by the High Court maybe having lower status as compared to the present applicant but neither they took such plea at any stage nor they were granted bail by the High Court on the basis of their status. Therefore, refusal of bail to the present applicant on such submissions would be totally unjustified.
So as the second contention of the learned A.A.G, is concerned, it has also no force at all. Moving any application for cancellation of bail is not guarantee that to1, certain co-accused persons would be definitely cancelled by the High ' Court. No doubt, a criminal cases has been registered against accused persons, including the present applicant, u/S. 420, 409, 468, 709, 511, 34 PPC read with section 5(2)-II-1947 but criminal justice does not mean persecution, calcification or assassination of respect, honour and dignity of an accused person on the anvil of allegations under the forceful hammer of discretion blindly and unjustifiably. If such force is not checked properly and seriously in time by the Superior High Court, it would, undoubtedly, become a source of corruption.
7. The circumstances, in which the main beneficiaries were granted bail K.D.A. Officials were refused bail by the Trial Court, do not permit me to leave the present applicant at the mercy of Trial Court to face the same torture as was experienced by his colleagues. It would also be not justified to refuse bail to the applicant, when all co-accused belonging to the K.D.A, except the absconders, have been granted bail by the High Court after the same was refused by the Trial Court.
Keeping in view all the circumstances mentioned above, I confirm the interim to the applicant on 23.11.1994 on the same term and conditions.
8. Before parting with this order, I consider it necessary to mention that the learned Special Judge in his report has tried to justify his orders of granting bail to the main beneficiaries and refusing bail to the K.D.A. Officials. If any order or any judgment of a Court falls within the ambit of judicial order, or judicial findings respectively or contains judicial observations, then it would be unappreciable to criticise the same by superior judiciary because it would discourage the learned judges of the Trial Courts. However, if any order or judgment of Trial Court contains such material which is not converted by the above-mentioned legal terms and also damages the institution of judiciary then such orders or judgments may not be ignored by the superior Courts especially in the light of observations made in the judgments reported in PLD 1994, S.C. And PLD 1994' S.C. 885. It would, therefore, be necessary to find out the difference between the above-mentioned judicial terms and their scope with reference to certain orders or judgments passed or delivered by certain sub- ordinate Courts before proposing any action, if necessary, against anyone.