' Naveed Hussain, A.S.-I. Incharge Mobile Gasht Falcon No,2, Police .Lines, Rawalpindi was on Gasht of the area on 4-12-1996 along with his subordinates in official vehicle No,RIV/9082 being driven by Javed Akhtar, Constable No,4023. The vehicle reached Bilal Plaza on Bank Road at 4-0Q p.m. The inmates of the vehicle saw one person who was running fastly. He was made to stand who gave his name as Zahoor Ahmad. He informed Naveed Hussain, A.S.-I. That he had parked his car No,AJKB/222 in front of Waheed Brothers (Tailors and Garments) when two persons without his permission drove - the car towards the Bank Road. He (complainant) made Zahoor Ahmad and one person accompanying him to sit in the official vehicle and started following the stolen car.
They succeeded in reaching near the stolen car near the Office of Military Engineering Services situated on Murree Road in front of Chowk Bank Road. At that time the stolen car hit with a Mazda Bus. The stolen car was made to stand there. Two persons alighted from the same and started running who were chased and were caught on the same Bank Road. One of them named himself as Nawab Khan son of Amir Din while the other, Muhammad Fayyaz son of Fazal Ahmad. On wireless message the Sub-Inspector posted in Police Station Cantt., Rawalpindi also reached alongwith his staff. Both Nawab Khan and Muhammad Fayyaz accused persons were arrested while Zahoor Ahmad and his companion Abdul Waheed appeared before the police.
2. The car, the Registration Book of the car and three keys of the car were taken into possession vide memo. About the occurrence Crime Case No,275, dated 4-12-1996 was registered at the instance of Naveed Hussain at Police Station Cantt., Rawalpindi under section 381/411, P.P.C. On the same date stolen car was identified by Zahoor Ahmad owner and his companion Abdul Waheed.
Muhanyr, iad Fayyaz and his co-accused were sent to the judicial lockup on 5-12-19?6 by the Area Magistrate. The hail application of Muhammad Fayyaz petitioner-accused was dismissed by both the lower Courts who has filed this petition before this Court to try his luck to be admitted to bail.
3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel of the petitioner-accused has canvassed that Muhammad Fayyaz petitioner is entitled to sail with his co-accused Nawab Khan in the same boat through the attraction of the rule of consistency as Nawab Khan was admitted to bail by the Additional Sessions Judge, that the offences under section 381-A/411, P.P.C. Do not fall within the prohibitory clause; that the recovery of the car stands effected and that in spite of the submission of the challah during the month of February, 1997 the trial has not been started by the learned Senior Civil Judge/Magistrate Section 30, Cr.P.C. Who is the Ilaqa Magistrate. On the contrary it has been argued by the learned State Counsel that Nawab Khan was not entitled to be admitted to bail who was arrested at the spot along with Muhammad Fayyaz when the stolen car was taken into possession, that even though the case does not fall within the prohibitory clause in the circumstances of the matter the exception must be taken to the rule that an accused involved in an offence not falling within prohibitory clause is entitled to be admitted to bail and that Muhammad Fayyaz petitioner-accused was earlier convicted. In ' Crime Case No,421 of 1992 registered under section 379, P.P.C. At Police Station Civil Lines, Gujranwala about which the report has been obtained from the Superintendent Central Jail, Gujranwala.
4. In my view it is not a case for the admission of Muhammad Fayyaz petitioner to bail and in this respect I express my following reasons:--
(i) Nawab Khan co-accused has no doubt been admitted to bail by the Additional Sessions Judge, Rawalpindi. However, I have to express that this Superior Court is not bound by his order so as to grant the weight to the argument addressed by learned counsel for Muhammad Fayyaz petitioner- accused that he has to sail with his co-accused in the same boat through the attraction of rule of consistency. The aforesaid rule has to be followed by the subordinate Court and if it has not been followed the High Court is not bound by the order passed in favour of Nawab Khan. As has become usual people are taking such matters in routine. Otherwise the prosecution could have proceeded against Nawab Khan for the cancellation of bail and that aspect of the matter would have also been a sort of supervision on the working of the Additional Sessions Judge. This argument is not given the weight.
(ii) It is a case of car lifting and cannot be taken lightly as required and desired by Muhammad Fayyaz petitioner-accused. It is not a matter wherein a car was taken into possession by the police while the same was standing somewhere under the custody/supervision of Muhammad Fayyaz petitioner-accused. The allegation against him is that he alongwith his co-accused removed the car from the road side which fact fortunately came to the notice of the owner of the car who alongwith his companion followed the petitioner and he was fortunate enough to get the assistance of the police party which was on Gasht of the area. Naveed Hussain, A.S.-I. Alongwith the police party made the owner of the car and his companion sit in the official vehicle and followed the accused persons. The car was stopped as it hit with a Mazda Bus. Both the occupants of the car came out of the same and started running. They were overpowered by the police. It means that Muhammad Fayyaz was arrested at the spot alongwith the stolen car. In this view of the matter I hold that, as rightly pointed out by the learned counsel for the State, it is an exceptional case wherein the rule that an accused involved in a case not falling within the prohibitory clause should not be admitted to bail. Such cases are quite in rife during these days and the situation having been created by Muhammad Fayyaz petitioner-accused himself has made me to withdraw the discretion which need not be exercised in his favour.
(iii) In a case of the instant nature Muhammad Fayyaz was earlier convicted and the chance of repetition cannot be ruled out. No doubt the bail cannot be refused to an accused as a punishment, yet I am tempted to express that an accused with the aforesaid type of credentials should remain in jail than to be admitted to bail.
5. The challan has been 'Submitted. It would be instructive to express that all the cases in which the challans are submitted before the Area Magistrate(s) are fixed for hearing within a short span of period so that there is early disposal of the cases.
6. For what has been said above, I see no merit in this bail application and lc dismiss the same.