' The petitioner Qaiser Ali, complainant of case F.I.R. No.46 of 1998 dated 27-1-1998 registered at Police Station Mughalpura, Lahore, for the offence under section 302/109, P.P.C. For an occurrence of the same day in which Zahid Ali brother of the complainant got murdered, is seeking cancellation of post-arrest bail granted to respondent No.2 Waheed Ijaz by Mr. Naseem Akhtar Khan, Additional Sessions Judge, Lahore on 26-9-1998.
2. The allegation in the F.I.R. Is that while the complainant was going in a rickshaw sitting with the rickshaw driver and the deceased Zahid Ali was sitting with his wife Aisha Bibi, the co-accused, on the back seat of the rickshaw, an unknown person wearing helmet came near the rickshaw on a motorcycle and, with his mouser, fired two shots at the deceased who died at the spot. The respondent Waheed Ijaz and co-accused Aisha Bibi, the widow of the deceased, have been involved in the present case through supplementary statement of the complainant recorded on the same day, just after few hours of the occurrence, in which the complainant has narrated that he informed his mother in Gakhhar Mandi of the occurrence who asked him to get a case registered against the deceased's widow Aisha Bibi as well as against the respondent Waheed Ijaz as she suspected of illicit relations between the two. The co-accused Aisha Bibi was arrested on 2- 2-1998. Her application for the grant of post-arrest bail was dismissed by the Additional Sessions Judge on 10-3-1998. She was granted bail by this Court (Criminal Miscellaneous No.1198-B/98) on 14-5-1998. The respondent Waheed Ijaz obtained pre-arrest bail from the-Court of Mr. Saif-ur- Rehman, Additional Sessions Judge, Lahore and was ultimately arrested on 14-4-1998 when he withdrew his application for the grant of bail before arrest. His -application for the grant of post- arrest bail was dismissed for non-prosecution by Mr. Saif-ur-Rehman, Additional Sessions Judge, Lahore on 18-7-1998. In the meanwhile, the investigation was completed and the challan of the case was submitted in the Court of Mr. Naseem Akhtar, Additional Sessions Judge, Lahore. The respondent's second application for the grant of post-arrest bail was entertained by Mr. Naseem Akhtar, Additional Sessions Judge/trial Court and, as mentioned above, the respondent was granted post arrest bail on 26-9-1998.
3. It is contended by the learned counsel for the petitioner that the respondent managed to obtain post-arrest bail from the trial Court through his second application for the grant of post-arrest bail without disclosing that his first application for the grant of post-arrest bail had been dismissed for non-prosecution on 18-7-1998 by a different Presiding Officer i.e. Mr. Saif-urRehman, Additional Sessions Judge, Lahore. In this regard, learned counsel has referred to the respondent's second application for the grant of post-arrest bail which carries a certificate to the effect that the said application was the first application of its nature duly signed by the same learned counsel who had filed the first application for the grant of post-arrest bail, dealt with by a different Presiding Officer. Learned counsel has referred to the bail granting order dated 26-9-1999 to show that the learned trial Court which granted post-arrest bail to the respondent was not conscious of the fact that the petitioner's previous application for the grant of post-arrest bail had been dismissed for non-prosecution on 18-7-1998 by another Presiding Officer. Learned counsel has thus argued that the respondent managed to obtain the bail granting order by suppressing the factum of dismissal of his previous application for the grant of post-arrest bail and having misrepresented the Court and having not come to the Court with clean hands, the respondent is not entitled to the exercise of discretion in his favour and, therefore, the bail granted to him should be recalled. Reliance in this regard has been placed on Abdul Ghafoor alias Ghafoori v. The State PLD 1975 Lah. 754 in which, in similar situation, the bail was refused and it was held that where the petitioner does not approach the Court with clean hands, he is not entitled to the concession of bail and discretion cannot be exercised in his favour. Further reliance has been placed on Shahadat Ali v. Mubarik Shah and another PLD 1986 SC 347 and Akbar v. The State 1994 PCr.LJ 1237 (Lahore). In the former case, bail before arrest granted to the accused was cancelled by the Honourable Supreme Court and. In the latter case, this Court refused to grant bail to the petitioner on the grounds "(I) the accused has deliberately suppressed in his bail application the fact of his previous application having been dismissed by the High Court on merits and (II), the accused had no case for the grant of bail on merits. Learned counsel for the petitioner has further argued that the learned trial Court while granting bail to the respondent has undertaken deeper appreciation of the material /evidence on the record, although at such a stage, the deeper appreciation should not be undertaken and, therefore, on this score alone, the bail granted to the respondent merits to be cancelled. Reliance in this regard has been placed on Qadar Mand v. Muhammad Amroze and 4 others 1998 SCMR 496 wherein it has been held that the appreciation of evidence cannot take place at bail stage and the Honourable Supreme Court cancelled the bail granted to the accused on the ground that the evidence on the record as collected by the police had made reasonable grounds for believing the accused to be guilty of the offence allegedly committed by them. It is argued next that although the respondent has been named as an accused through a supplementary statement but this fact ipso facto will nor make it a case for the grant of hail. Reliance in this regard has been placed on Anjum v. The State 1994 PLR 293 where bail to an accused named through supplementary statement was refused. Learned counsel has also placed reliance on Mst. Rambail Bibi v. Mir Alam and others PLD 1997 Pesh. 173 to contend that after the introduction of Diyat and Qisas provisions in the P.P.C., the complainant is also entitled to notice of bail application by the accused and, therefore, the bail granted to respondent by the Additional Sessions Judge without notice to the petitioner merits cancellation by this Court. On merit, it has been submitted that the respondent is named in the F.I.R. Through a supplementary statement, in the investigation, he and co-accused Aisha Bibi have been found guilty and both of them have been challaned to face the trial, the respondent confessed guilt before the P.Ws. Yusuf Ali and Basharat Ali, the weapon of offence, the mouser, was recovered from the respondent on 24-4-1998 whereas the empties recovered from the spot on 27-1-1998 were sent to the Forensic Science Laboratory prior to that on 23-4-1998 and according to the report dated 25-7-1998 of Firearm Expert, the empties have matched with the weapon recovered from the respondent and, therefore, overwhelming evidence is available against the respondent to connect him directly with the commission of the offence as alleged against him.
4. Learned counsel for the State has supported the petition and has submitted that as the respondent is named in the F.I.R. And as enough material is available on the record to connect the respondent with the commission of the offence. Therefore, he is not entitled to the grant of hail and the bail granted to him by the Additional Sessions Judge should be recalled.
5. Learned counsel for the respondent, while vehemently opposing the petition, has submitted that the extra-judicial confession is a weak type of evidence and on the basis of the same, the bail granted to an accused should not he recalled; the weapon of offence, the mouser, was allegedly recovered from the respondent on 24-4-1998 and just a day before i.e. On 23-4-1998, the empties were sent to Forensic Science Laboratory which points towards the dishonest investigation because this also shows that the empties remained with the police for three months and possibility cannot be ruled out that all the recoveries are fake and have been planted. It is submitted next that the respondent has been involved merely on the basis of suspicion cast by the mother of the deceased who was not present at the place of occurrence and the eye-witness/complainant who was present on the spot, has not so far formally identified the respondent. Learned counsel has also placed reliance on Tariq Bashir and 5 others v. The State PLD 1995 SC 34 wherein it has been held that "the consideration for the grant of hail and for cancellation of the same are altogether different, Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would he required for cancellation thereof, To deprive a person on post-arrest bail of the liberty is a most serious step to be taken, There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or - imprisonment for ten years." Learned counsel has also placed his reliance on Miandad v. The State and another 1992 SCMR 1286 to contend that considerations for cancellation of bail are different because subsection (5) of section 497, Cr.P.C. Under which power is exercised, does not command the Court to cancel the bail even if the offence is punishable with death or imprisonment for life and even in those cases in which the grant of bail is prohibited under subsection (1) of section 497, Cr.P.C., the cancellation of bail under subsection (5) of section 497, Cr.P.C. Is a matter of discretion of Court. In regard to the entertainment of second post-arrest bail petition by Mr. Naseem Akhtar Khan, Additional Sessions Judge, Lahore and the grant of bail by him to the respondent on 12-9- 1998, learned counsel contends that the same was entertained and granted by him competently and legally because the principle of Zubair's case PLD 1986 SC 173, even if made applicable to the second, subsequent or successive bail applications being entertained and decided by the subordinate-Courts, is not involved because the respondent's previous application for the grant of post-arrest bail was not dismissed by Mr. Saif-urRehman, Additional Sessions Judge, Lahore on 18- 7-1998, on merits, but was dismissed for non-prosecution. Learned counsel has further contended that even if the rule of Zubair's case was applicable to the present case, even then the respondent's application for the grant of post-arrest bail after the submission of challan of the present case for trial in the Court of Mr. Naseem Akhtar Khan, Additional SessiOns Judge, Lahore was to he heard and decided only by him and by no other Presiding Officer. In this regard, learned counsel has placed reliance on the decision dated 4-6-1997 of the Administration Committee of the Lahore High Court which is contained in Office Order No.10174 MIT/HC/Cr.Misc.383CB of 1994, dated 4-7- 1997 issued by the Member Inspection Team. Lahore High Court, Lahore to all the District and Sessions Judges in the Punjab and District and Sessions Judge, Islamabad. Learned counsel has produced a copy of the Office Order which has been placed on the record of this petition. The decision of the Administration Committee contained therein reads as follows:- "Rule in Zubair's case should be applied as far as possible. However, after commencement of trial, all bail applications arising out of the case should be entrusted to the trial Court."
' In regard to the non-disclosure of the dismissal for non-prosecution of the respondent's previous application on 18-7-1998 by Mr. Saif-ur-Rehman.
Additional Sessions Judge to Mr. Naseem Akhtar Khan, Additional Sessions Judge during the hearing of the second post--arrest bail petition, learned counsel has contended and explained that it was not a misrepresentation but as a mistake which occurred in routine. Learned counsel has argued that if there was any intention to misrepresent the Court or to deliberately suppress the factum of dismissal of previous petition for non-prosecution, the respondent would have changed the counsel and the same counsel would not have appeared in both the petitions. Mr. Naveed Saeed Khan, learned counsel for respondent No.2 is the counsel who appeared for respondent No.2 before the above said Additional Sessions Judges in both the above said petitions, has further submitted that it was his mistake and not the mistake of respondent No.2 and he should have informed Mr. Naseem Akhtar Khan, Additional Sessions Judge, Lahore of the factum of dismissal of respondent's previous bail petition by a different Additional Sessions Judge and the respondent should not suffer at this stage due to the mistake of his counsel. Learned counsel has further very frankly conceded that the certificate given by him in the margin of the second post-arrest bail petition which was ultimately entertained and decided by Mr.Naseem Akhtar Khan, Additional Sessions Judge to the effect that this is the first bail petition on the subject-matter" bears his signatures and that it is an incorrect certificate but the same is the result of a clerical mistake and also due to the fact that previously the respondent's petition for the grant of post-arrest bail had not been decided till then on merits. Learned counsel has also expressed his regrets over it.
6. Both the applications were moved by the same learned counsel, therefore, in my view, the respondent did not intend to misrepresent the Court and did not deliberately suppress the fact of dismissal of previous petition for non-prosecution by a different Presiding Officer because had he intended to do so he would have changed the counsel and, therefore, the respondent should not suffer for the mistake of his counsel. Furthermore, even if the information had been disclosed to the Presiding Officer who heard and decided the subsequent application for the grant of post-arrest bail, the situation would have remained the same because under the abovementioned decision of the Administration -Committee of this Court, the said application could be heard only by Mr. Naseem Akhtar Khan, Additional Sessions Judge, Lahore, who was seized of the trial of the case and it would not have been transferred back to Mr. Saif-urRehman, Additional Sessions Judge, Lahore, who had previously dismissed the respondent's application for the grant of post-arrest bail, for non-prosecution on 18-7-1998. As regards the wrong certificate given by the learned counsel on the margin of the subsequent bail petition to the effect that it was the first bail petition on the subject-matter, there is no plausible explanation. The same learned counsel (Mr. Naveed Saeed Khan, Advocate) has contested the present petition and has submitted that the mistake has occurred inadvertently and there was no intention on his part to misrepresent the Court or to suppress a fact from the Presiding Officer. I am convinced that the learned counsel did not intend to misrepresent the Court because had there been any intention to misrepresent the Court or had there been any intention to suppress \the material fact from the Court, he wouldn't have signed the certificate issued by him and he would have gotten engaged another counsel. However, the fact remains that an incorrect certificate was issued by him. This shows a lapse on the part of the learned counsel but as, (due to the abovementioned) the issuance of said certificate has not resulted in miscarriage of justice, therefore, I do not intend to initiate any proceedings of professional misconduct against him but he is warned and is directed to remain careful and more vigilant in future.
7. On merits, I do not find it a fit case for the exercise of discretion of recall of bail granted to the respondent by the learned trial Court. The respondent is not named in the F.I.R. By the complainant who is also an eye- witness of the occurrence. He has been named subsequently through a supplementary statement merely on the basis of suspicion of the complainant's mother but strangely enough, after the arrest of respondent, no identification parade was .Held whereby the complainant who was present at the spot could identify the accused. The empties recovered from the spot remained with the police from 27-1-1998 to 23-4-1998 and the weapon of offence was recovered from the respondent merely a day after on 24-4-1998 and in these circumstances the argument of the learned counsel for the respondent that the recoveries are fake has much force and I am not inclined to recall the bail granted to an accused on the basis of this recovery. The only other material available against the respondent is extra judicial confession of the respondent before the P.Ws., Yousaf Ali and Basharat Ali, which is a weak type of evidence and on the basis of the same, the bail granted to an accused cannot be recalled. The considerations for the grant of bail and for the cancellation of the same are altogether different. The strong and exceptional grounds required for the cancellation of bail granted to the respondent by, the trial Court are not available. This petition, thus, having no merit is accordingly dismissed.