1995 P Cr (PLP)
OMAIR AHMED SIDDIQUI — Applicant Versus THE STATE — Respondent
| Citation | 1995 P Cr (PLP) |
| Forum / Court | Karachi |
| Bench Members | N/A |
| Parties | OMAIR AHMED SIDDIQUI — Applicant Versus THE STATE — Respondent |
| Primary Law | (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898), (d) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 1995 P Cr (PLP)?
This judgment primarily cites: (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898), (d) Criminal Procedure Code (V of 1898), (e) Criminal Procedure Code (V of 1898), (c) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1995 P Cr (PLP)?
The case was heard and decided by the Karachi bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1995 P Cr (PLP) (OMAIR AHMED SIDDIQUI — Applicant Versus THE STATE — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----S. 497/498---Bail---More than one accused represented by different Advocates---Duty of Advocates---Where there are a pore than one accused in a case and each accused is being represented by a different Advocate, then responsibility of each Advocate is to keep the Court fully aware about the orders passed in the cases of those accused too who were not represented by them.
- Province of East Pakistan v. Dr. Aziz-ul-Islam PLD 1963 SC 296; Farid v. Ghulam Hassan and others 1968 SCMR 924; Abdul Ghafoor alias Ghaforia v. The State PLD 1975 Lah. 754 and The State through Advocate General, N.-W.F,P. v. Zubair and 4 others PLD 1986 SC 173 ref.
- An application under section 561-A, Cr.P.C. may be entertained by a Court, provided a bail application of such an accused has not been dismissed by the Custom Appellate Court which is also presided over by a Judge of the High Court. Similarly if an application under section 561-A, Cr.P.C. has no mention of those dismissal orders which were passed against the same accused or the co accused in the same F.I.R. or incident then it leaves no doubt for the Court that facts of dismissal orders have been concealed by the counsel from the Court. If the accused has brought a new Advocate for moving such an application under section 561-A, Cr.P.C. and the facts of dismissal orders passed in the previous bail applications have not been mentioned in it then it may be presumed that the accused has tried to mislead the Court by not giving full information to his new Advocate. In all such cases such an application is entitled to be dismissed on the ground that it was moved not with clean hands. However, if the facts of dismissal have been mentioned in the said application moved under section 561-A, Cr.P.C. for quashment, then such an application be sent to the same Judge who had dismissed the bail application of the said accused so that creation of doubts in the minds of common persons be avoided. The Courts have enunciated such principles to avoid contradictory judgments not only to save the superior Court from any disrepute but also to shatter the foundation of any possible corruption in the subordinate judiciary. These principles would be equally applicable in all those cases where an application under section 561-A, Cr.P.C. is moved after the bail had been refused.
- 2. The applicant had approached this Court previously through Syed Sami Ahmed, Advocate by moving Special Criminal Application No.29 of 1995 but the said application was dismissed on 1-8-1995 (now reported in 1996 PCr.LJ 22).
- 3. It appears that after this failure, the learned counsel for the petitioner Mr. Rana M. Shamim, tried his fate to get the applicant released on the same ground from the Court of Special Judge (Central) II, Karachi. It had not been disclosed therein that one bail application of the same applicant/accused was also pending before this Court on the same ground, perhaps the same may not have been in the knowledge of the learned Advocate at that time. The said application was dismissed by the learned Special Judge. However, if the learned Special Judge (Central) II, Karachi had allowed the said bail application, the applicant would have been released from the prison under the impression that he had been granted bail in all the cases because the F.I.R. was quoted on the face of the application with all those sections too which were not related to that Court.
- Mr. Rana M. Shamim had moved two bail applications before this Court i.e. Criminal Bail Application No.652 of 1995 as well as the present bail application. When both these applications were tabled before this Court on 29-10-1995 I passed a detailed order in Criminal Bail No.652 of 1995 wherein the learned counsel were asked to satisfy the Court whether observations made in Special Criminal Bail No.29 of 1995 can be treated hurdles or not is passing an order in the application in hand because the previous application had been moved on the same ground and the same had also been dismissed by me. It is important to point out that the said order passed in Criminal Bail Application No.652 of 1992 was produced in the present bail application by writing the words, for the sake of brevity, as "same order as in Criminal Bail No.652 of 1995". Instead of satisfying this Court on the question raised by the Court, the learned counsel got adjournments on different dates and then on 29-10-1995 the learned Advocate preferred to remain absent. But I did not like to dismiss these applications on that date and adjourned the same. On 8-11-1995, the learned counsel stated that he does not press the bail applications. Hence the same were dismissed as withdrawn.
- 6. Surprisingly enough for me, this application was again listed before me on 23-1-1995. When the matter was called none of the two Advocates was present in the Court. Hence I adjourned the matter. Soon after the order for adjournment was passed both the learned Advocates appeared and explained that due to their mistake withdrawal of both applications had been allowed by this Court in both the applications but they had intended to withdraw only in one case i.e. Criminal Bail Application No.652 of 1995 and not in the present case. I had no option except to deem it as correct. It was the background due to which the bail application was relisted for hearing. However, the arguments of the learned counsel remained limited only to the ground of statutory delay which ground had already been fully discussed in Special Criminal Bail Application No.29 of 1995 moved on behalf of the same applicant and the said application had been dismissed in August, 1995.
- 8. It is necessary to point out that the question arose on account of my knowledge because the dismissal order in Special Criminal Bail Application No.29 of 1995 had been passed by me. I have no doubt in my mind that any other Judge could be easily misguided if the learned Advocate had not disclosed the fact of dismissal order at the time of arguing this application because the learned Advocate had not amended this bail application after the dismissal order was passed by this Court. It can be said by the learned counsel that these applications and been moved before this Court when the bail Application No.29 of 1995 was still pending. No doubt, it had been so but it was the duty of the learned Advocate to amend this application after it came to his knowledge that one application of the same applicant had been dismissed by this Court so that no other Judge should draw an impression that certain facts were concealed from him. Similarly if there are more than one accused in a case and each accused is being represented by different Advocates then responsibility of each Advocate is to keep the Court fully aware about the orders passed in the cases of those accused too who were not represented by them. For example if bail application of accused "A" was dismissed by any Bench of the High Court and another application of accused "B" is brought before another Bench by another Advocate then it is necessary that dismissal order passed in the case of accused "A" must be mentioned in the bail application of co-accused "B". If this thing is not mentioned in the bail application then it has to be treated as intentional concealment of facts by the learned Advocate and the bail application be dismissed on this ground that the accused has not been represented with clean hands and therefore, such an accused is not entitled to the concession of bail because the discretion of the Court cannot be exercised in favour of such an accused, may such person be a he or she. The act of concealing the facts of l dismissal has always been regretted and condemned to avoid contradictory orders of different Benches of the superior Courts. It is, therefore, necessary that when one Judge of the superior Court has expressed himself strongly against grant of bail then another Judge of the same Court, in I accordance with long-established practice and rule of propriety, when moved for grant of bail, should transfer such application for disposal by the first Judge. Reference in this regard can be made to the case reported as Province of East Pakistan v. Dr. Aziz-ul-Islam PLD 1963 SC 296, Farid v. Ghulam Hassan and others 1968 SCMR 924, Abdul Ghafoor alias Ghaforia v. The State PLD 1975 Lah. 754 and The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173. In the last case i.e. Zubair's case (supra) several principles enunciated by the Honourable Bench of the Supreme Court comprising of, Aslam Riaz Hussain, Muhammad Afzal Zullah and Mian Burhanuddin Khan, JJ., appear as under:-- ' .
- It has been observed by me that when a Bench dismisses any bail application of an accused then an application on behalf of the same accused through the same Advocate or through any other Advocate is moved before another Bench under section 561-A, Cr.P.C. for quashment of the whole proceedings without disclosing the dismissal order passed in the bail applications moved on behalf of the same accused.
- I have no doubt in my mind to hold that an application under section 561-A, Cr.P.C. may be entertained by a Court, provided a bail application of such an accused has not been dismissed by the Custom Appellate Court which is also presided over by a Judge of the High Court. Similarly if an application under section 561-A, Cr.P.C. has no mention of those dismissal orders which were passed against the same accused or the co-accused in the same F.I.R. or incident then it leaves no doubt for the Court that facts of dismissal orders have been concealed by the learned counsel from the Court. If the accused has brought a new Advocate for moving such an application under section 561-A, Cr.P.C. and the facts of dismissal orders passed in the previous bail applications have not been mentioned in it then it may be presumed that the accused has tried to mislead the Court by not giving full information s to his new Advocate. In all such cases such an application is entitled to be dismissed on the ground that it was moved not with clean hands. However, if the facts of dismissal have been mentioned in the said application moved under section 561-A, Cr.P.C. for quashment, then such an application be sent to the same Judge who had dismissed the bail application of the said accused so that creation of doubts in the minds of common persons be avoided. The superior Courts have enunciated such principles to avoid contradictory judgments not only to save the superior Court from any disrepute but also to shatter the foundation of any possible corruption in the subordinate judiciary. These principles would be equally applicable in all those cases where an application under section 561-A, Cr.P.C. is moved after the bail had been refused.
- 10. As the learned Advocate has not argued any new ground except the sole ground of statutory delay, hence this application merits dismissal because:--
- These words are not sufficient to meet the purpose of the Court for which the report is sought from the office. It is necessary that the office should point out the result of all such applications i.e. dismissed, allowed or vending, alongwith the name of the Honourable Judge by writing the same on the face of case file with red ink so that the result of previous bail or quashment applications should remain before the Court no matter the same was mentioned or concealed by the learned Advocate in the application moved by him.
- The cry of this order be also sent to the Additional Advocate-General as well as to the Deputy Attorney-General who are hoped to instruct their learned Advocates on their panel to take pain to find out the result of all previous applications which can directly or indirectly affect any pending application because they can also be treated equally responsible for concealing the facts from the Court if they do not take interest to find out such facts. With these observations, this application stands disposed of.
Headnotes / Summary
S. 497
Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4-- Customs Act (IV of 1969), S.156(1)(8)
Prevention of Corruption Act (II of 1947), S.5(2)
Several cases arising out of the same F.I.R.
Principles-- Chain of cases arising out of the same F.I.R. or incident must not be broken at the time of deciding any bail application because facts of all the cases remain the same even if the evidence in those cases is recorded by different Courts and if an accused has been refused bail in a case with maximum punishment. then such an accused should not be encouraged by granting him bail in other cases arising out of the same chain of events.
S. 497/498
More than one accused represented by different Advocates
Where there are a pore than one accused in a case and each accused is being represented by a different Advocate, then responsibility of each Advocate is to keep the Court fully aware about the orders passed in the cases of those accused too who were not represented by them.
S. 497/498
Subsequent bail application
Practice and procedure-- When one Judge of the superior Court has expressed himself strongly against grant of bail then another Judge of the same Court, in accordance with long established practice and rule of propriety, when moved for grant of bail, should transfer such application to the first Judge for disposal.
Ss. 561-A & 497
Quashment application moved after dismissal of bail application
Principle to be followed by Courts explained.
S. 497
Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4-- Customs Act (IV of 1969), S.156(1)(8)
Prevention of Corruption Act (II of 1947), S.5(2)
Bail was sought on the sole ground of statutory delay on which ground previous bail application of accused had already been dismissed-- Present case being the part and parcel of the same chain of cases which arose out of one F.I.R., such chain could not be broken unless bail had been granted in the case attracting maximum punishment
Judgment & Decree
2. The applicant had approached this Court previously through Syed Sami Ahmed, Advocate by moving Special Criminal Application No.29 of 1995 but the said application was dismissed on 1-8-1995 (now reported in 1996 PCr.LJ 22).
3. It appears that after this failure, the learned counsel for the petitioner Mr. Rana M. Shamim, tried his fate to get the applicant released on the same ground from the Court of Special Judge (Central) II, Karachi. It had not been disclosed therein that one bail application of the same applicant/accused was also pending before this Court on the same ground, perhaps the same may not have been in the knowledge of the learned Advocate at that time. The said application was dismissed by the learned Special Judge. However, if the learned Special Judge (Central) II, Karachi had allowed the said bail application, the applicant would have been released from the prison under the impression that he had been granted bail in all the cases because the F.I.R. was quoted on the face of the application with all those sections too which were not related to that Court.
4. Present bail application was also moved on the same pattern i.e., mention of F.I.R. No.9/1993 with all sections relating to the Customs Court, Special Court and the Court of Sessions Judge. It is also notable that bail application in hand has been kept totally silent on the point whether this application was moved to get bail in an offence attracted by section 5(2), P.C.A.-II, 1947 or by Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979. This application has also mention of section 156(1)(8) of the Customs Act. It was necessary for the learned counsel, at the time of filing of this application, that another application moved on behalf of the same accused on the same ground was also pending before this Court. It was also necessary for the learned counsel to amend this bail application as soon as the other bail application of the same accused was dismissed. It may be said by the learned counsel that this Court was fully aware of the facts of dismissal order hence it was considered unnecessary to amend this bail application after the previous application was dismissed but I would like to say that if this application had been put before any other Honourable Judge of this Court who had not been aware of the factual aspect of the dismissal order then undoubtedly he could be misguided easily because a Judge is not supposed to be having any mystical or magician's powers to know each and every order passed against an accused and particularly when the same has not been disclosed in the application.
5. Another important factor, which relates to the present applicant, got much more importance when I was going to dictate the present detailed order. Mr. Rana M. Shamim had moved two bail applications before this Court i.e. Criminal Bail Application No.652 of 1995 as well as the present bail application. When both these applications were tabled before this Court on 29-10-1995 I passed a detailed order in Criminal Bail No.652 of 1995 wherein the learned counsel were asked to satisfy the Court whether observations made in Special Criminal Bail No.29 of 1995 can be treated hurdles or not is passing an order in the application in hand because the previous application had been moved on the same ground and the same had also been dismissed by me. It is important to point out that the said order passed in Criminal Bail Application No.652 of 1992 was produced in the present bail application by writing the words, for the sake of brevity, as "same order as in Criminal Bail No.652 of 1995". Instead of satisfying this Court on the question raised by the Court, the learned counsel got adjournments on different dates and then on 29-10-1995 the learned Advocate preferred to remain absent. But I did not like to dismiss these applications on that date and adjourned the same. On 8-11-1995, the learned counsel stated that he does not press the bail applications. Hence the same were dismissed as withdrawn.
6. Surprisingly enough for me, this application was again listed before me on 23-1-1995. When the matter was called none of the two Advocates was present in the Court. Hence I adjourned the matter. Soon after the order for adjournment was passed both the learned Advocates appeared and explained that due to their mistake withdrawal of both applications had been allowed by this Court in both the applications but they had intended to withdraw only in one case i.e. Criminal Bail Application No.652 of 1995 and not in the present case. I had no option except to deem it as correct. It was the background due to which the bail application was relisted for hearing. However, the arguments of the learned counsel remained limited only to the ground of statutory delay which ground had already been fully discussed in Special Criminal Bail Application No.29 of 1995 moved on behalf of the same applicant and the said application had been dismissed in August, 1995.
7. Before radiating certain other glaring aspects of this bail application I regretfully put on record some of the most important and alarming realities in this order. On 13-8-1995, when this matter alongwith two other applications, was listed before me I expressed this difficulty as these applications could not be heard by me as they were not related to a crime attracted by Customs Act. Hence it was directed by me that instruction be sought from the Honourable Acting Chief Justice whether these bail applications be fixed according to the roster or be heard by me. The matter was put before the Honourable Acting Chief Justice and as a result of his order I was forced to decide the fate of these three applications two moved on behalf of Omair Siddiqui the present applicant, and the third moved on behalf of co-accused Khalid Mehmood. As stated earlier, at the time of hearing these applications the learned counsel for the applicant were asked to satisfy this Court that order of dismissal passed in Special Criminal Bail No.29 of 1995 was not a hurdle in passing any order in these applications. The background of asking this question relates to my view as expressed in a case that a chain of cases arising out. of the same F. I. R. or incident must not be broken at the time of deciding any bail application because facts of all the cases remain the same even if the evidence in those cases is recorded by different Courts. I am also of the view that if an accused has been refused bail in a case with maximum punishment, then such an accused should not be encouraged by granting him bail in the other cases arising out of the same chain.
8. It is necessary to point out that the question arose on account of my knowledge because the dismissal order in Special Criminal Bail Application No.29 of 1995 had been passed by me. I have no doubt in my mind that any other Judge could be easily misguided if the learned Advocate had not disclosed the fact of dismissal order at the time of arguing this application because the learned Advocate had not amended this bail application after the dismissal order was passed by this Court. It can be said by the learned counsel that these applications and been moved before this Court when the bail Application No.29 of 1995 was still pending. No doubt, it had been so but it was the duty of the learned Advocate to amend this application after it came to his knowledge that one application of the same applicant had been dismissed by this Court so that no other Judge should draw an impression that certain facts were concealed from him. Similarly if there are more than one accused in a case and each accused is being represented by different Advocates then responsibility of each Advocate is to keep the Court fully aware about the orders passed in the cases of those accused too who were not represented by them. For example if bail application of accused "A" was dismissed by any Bench of the High Court and another application of accused "B" is brought before another Bench by another Advocate then it is necessary that dismissal order passed in the case of accused "A" must be mentioned in the bail application of co-accused "B". If this thing is not mentioned in the bail application then it has to be treated as intentional concealment of facts by the learned Advocate and the bail application be dismissed on this ground that the accused has not been represented with clean hands and therefore, such an accused is not entitled to the concession of bail because the discretion of the Court cannot be exercised in favour of such an accused, may such person be a he or she. The act of concealing the facts of l dismissal has always been regretted and condemned to avoid contradictory orders of different Benches of the superior Courts. It is, therefore, necessary that when one Judge of the superior Court has expressed himself strongly against grant of bail then another Judge of the same Court, in I accordance with long-established practice and rule of propriety, when moved for grant of bail, should transfer such application for disposal by the first Judge. Reference in this regard can be made to the case reported as Province of East Pakistan v. Dr. Aziz-ul-Islam PLD 1963 SC 296, Farid v. Ghulam Hassan and others 1968 SCMR 924, Abdul Ghafoor alias Ghaforia v. The State PLD 1975 Lah. 754 and The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC
173. In the last case i.e. Zubair's case (supra) several principles enunciated by the Honourable Bench of the Supreme Court comprising of, Aslam Riaz Hussain, Muhammad Afzal Zullah and Mian Burhanuddin Khan, JJ., appear as under:-- ' . ..... it is the duty of the counsel to mention in a bail application filed by him the fact of having filed an earlier bail application, also stating the result thereof. Failure on the part of the counsel to do so would, in fact, amount to professional misconduct because the concealment of the fact of the dismissal of the earlier bail application of the accused or the co-accused and getting a subsequent bail application decided by another Judge of the same Court may result in conflicting judgments and disharmony in the Court . ..... the practice of filing successive bail applications in the same case by the same person or his co-accused and getting it fixed before a different Judge, is not only likely to result in conflicting Judgments but also tends to encourage malpractice by the accused persons and to bring the Judicial system into disrepute, because in the event of a conflicting order being given by another learned Judge in a subsequent application, an impression, though false, may be created that the second order was based on extraneous considerations. ..... the second or the subsequent bail application to the same Court shall lie only on a fresh Around, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed it cannot be considered as afresh and made the basis of any subsequent bail application. (Underlining is my own).
9. On the same propositions I consider it necessary to bring into light another regrettable growing tendency coupled with concealment of facts being observed nowadays. It has been observed by me that when a Bench dismisses any bail application of an accused then an application on behalf of the same accused through the same Advocate or through any other Advocate is moved before another Bench under section 561-A, Cr.P.C. for quashment of the whole proceedings without disclosing the dismissal order passed in the bail applications moved on behalf of the same accused. It is much more serious professional misconduct than that which has been discussed in the forthgoing paragraphs because it makes some sense that if an application of an accused for quashment under section 561-A, Cr.P.C. has been dismissed by any Judge of a High Court, then moving bail application for the same accused may not be treated unappreciable but undoubtedly it does not make any sense if an application under section 561-A, Cr.P.C. of such an accused be entertained after his bail application has been dismissed by any of the Judge of the same Court.. I have no hesitation to say that it shall be a matter of laughing stock and cause of bringing the judicial system in disrepute in the eyes of every sensible person who will say that proceedings of a criminal case against an accused were quashed by a Judge of the High Court whose bail application was not considered fit for grant of bail by another Judge of the same High Court.
10. It is important to point out that an application under section 561-A, Cr.P.C. may be entertained by a Judge of the High Court who is dealing with criminal cases in accordance to the roster even if the cases relate to the Custom Courts. Notwithstanding to this reality that such a view was expressed in one of the' judgments but it does not mean that such view is applicable in each and every case. I have no doubt in my mind to hold that an application under section 561-A, Cr.P.C. may be entertained by a Court, provided a bail application of such an accused has not been dismissed by the Custom Appellate Court which is also presided over by a Judge of the High Court. Similarly if an application under section 561-A, Cr.P.C. has no mention of those dismissal orders which were passed against the same accused or the co-accused in the same F.I.R. or incident then it leaves no doubt for the Court that facts of dismissal orders have been concealed by the learned counsel from the Court. If the accused has brought a new Advocate for moving such an application under section 561-A, Cr.P.C. and the facts of dismissal orders passed in the previous bail applications have not been mentioned in it then it may be presumed that the accused has tried to mislead the Court by not giving full information s to his new Advocate. In all such cases such an application is entitled to be dismissed on the ground that it was moved not with clean hands. However, if the facts of dismissal have been mentioned in the said application moved under section 561-A, Cr.P.C. for quashment, then such an application be sent to the same Judge who had dismissed the bail application of the said accused so that creation of doubts in the minds of common persons be avoided. The superior Courts have enunciated such principles to avoid contradictory judgments not only to save the superior Court from any disrepute but also to shatter the foundation of any possible corruption in the subordinate judiciary. These principles would be equally applicable in all those cases where an application under section 561-A, Cr.P.C. is moved after the bail had been refused.
10. As the learned Advocate has not argued any new ground except the sole ground of statutory delay, hence this application merits dismissal because:-- (i) I have already dismissed the bail application of this applicant in Special Criminal Bail Application No.29 of 1995 moved on the same ground. (ii) Moreover, this case is the part and parcel of the same chain of cases which arose out of one F.I.R. and I am of the view that such chain be not broken unless the bail has been granted in the case attracting maximum punishment and as discussed in the forthgoing paragraphs. This application is, accordingly dismissed.
11. Before parting with this order I consider it necessary to point out that the office had written the following words on one page of the judicial file before sending it to this Court. "The co-accused had filed Criminal Bail No.234 of 1995 and Criminal Bail No. 88 of 1994." These words are not sufficient to meet the purpose of the Court for which the report is sought from the office. It is necessary that the office should point out the result of all such applications i.e. dismissed, allowed or vending, alongwith the name of the Honourable Judge by writing the same on the face of case file with red ink so that the result of previous bail or quashment applications should remain before the Court no matter the same was mentioned or concealed by the learned Advocate in the application moved by him. The cry of this order be also sent to the Additional Advocate-General as well as to the Deputy Attorney-General who are hoped to instruct their learned Advocates on their panel to take pain to find out the result of all previous applications which can directly or indirectly affect any pending application because they can also be treated equally responsible for concealing the facts from the Court if they do not take interest to find out such facts. With these observations, this application stands disposed of. N.H.Q./O-1/K Bail refused.