P L D 1990 Lahore 151 (PLP)

In the case registered at the petitioner's instance vide FIR No. 148 of 17‑6‑1989, under sections 302, 307, 148, 149 PPC at Police Station Urban Area, Sargodha against the respondent and 6 others, inter alia, alleging that during the course of execution proceedings of an ejectment order, the respondent and co accused Raiz resorted to indiscriminate firing with guns, consequent whereto one Fazal Hussain was murdered while another person Muhammad Yar was injured, the respondent's father Sh. Ameer ‑on .29‑6‑1989 was allowed ad interim pre arrest bail by Shezada Kabir Ahmad, learned Additional Sessions Judge, Sargodha (hereinafter referred to as the Additional Sessions Judge) till 6‑7‑1989 by immuring him from arrest; and, subsequently similar relief was extended to his brother Sh. Akram, another co‑accused on 3‑7‑1989. Feeling aggrieved, the complainant, before the confirmatory proceedings, sought transfer of both the cases, which matter was referred to this Court by the learned Sessions Judge, Sargodha on 9‑7‑1989 for entrustment of the bail petitions to some other Sessions Court, however, as an interim measure, directed the .... Additional Sessions Judge not to finally decide the petitions in question; pursuant whereto a learned brother of mine vide order dated 5‑8‑1989 passed in Criminal Misc. No.140/T/89, with the consent of the parties, transferred both the petitions from the Court of Additional Sessions Judge to the then incumbent in charge of the Sessions Division Sargodha. During the interregnum, on 1‑8‑1989 (though erroneously A typed out as 1‑9‑1989), the respondent moved post‑arrest bail petition with a note that connected bail petitions of co‑accused are pending adjudication before the Additional Sessions Judge, and the matter has been referred to the High Court for appropriate orders. In view whereof the learned Sessions Judge, Sargodha marked the same to the Additional Sessions Judge, who on 2‑8‑1989 issued notice to the State for 6‑8‑1989 viz. the date for which the afore referred bail Petitions of the co‑,accused were already fixed. On that date, the Additional Sessions Judge, though adjourned petitions of the co‑accused, either on account of having been apprised of the transfer order passed by this Court or in view of the injunctive order of the learned Sessions Judge, but allowed bail to the respondent, inter alia, on the medical ground; cancellation whereof has been sought by virtue of the present petition by contending that since the connected bail petitions of the co accused pending adjudication in the Court of Additional Sessions Judge had been ordered to be transferred to the learned Sessions Judge, wherein the former was already restrained by the latter, judicial propriety demanded of him not to adjudge the matter. Appreciating the contention; Mr. Ijaz Hussain Batalvi, learned counsel for the respondent, in all fairness did not join cavil with the same, however, submitted that for an act of the Court, a litigant should not suffer.

2. Before proceedings further, it is conclusive to observe that the Additional Sessions Judge, in' the report which he was called upon to submit felt contended by saying that, he disposed of the matter since it was marked to him by the learned Sessions Judge. I am afraid, the pedantic explanation tendered by the Additional Sessions Judge seems to be oblivious of the fact that the learned Sessions Judge could neither have assumed nor he could have been assigned the most jealously watched task of keeper of the former's conscience, rather I am sure that had the then incharge of the Sessions division been apprised of the true facts, in all probabilities, he would have not marked the case to the Additional Sessions Judge, or if subsequently pointed out by the latter, who for certain was in the full knowledge thereof, he would have not felt any hesitation in taking the appropriate steps. Therefore, I am impelled to observe that it is a patent illustration of judicial impropriety in disregard of the law enunciated in Zubair's case PLD 1986 SC 173.

3. In view of the afore going, the bail granted to the respondent vide the impugned order is hereby recalled, and the case is remanded to the learned Sessions Judge, Sargodha, for fresh adjudication on merits in accordance with law, before whom the respondent is directed to appear on 24‑1‑1990, who, till then, should not be arrested in this case.

4. As a matter of abundant caution, it may further be observed that if medical ground comes up for consideration then the respondent should be' referred for medical examination to the board comprising Prof. Khawaja Sadiq Hussain, former Principal King Edward Medical College, Lahore, Dr.Sbaharyar Abmad Sheikh, Executive Director of (he Punjab Institute of Cardiology and Prof ' Sheikh Ashfaq Ahmad W Sheikh Zaid Hospital, Lahore, all expenses whereof should be borne and pre‑paid by the respondent. This petition is disposed of in the above terms. M.B.A./M‑1850/L order accordingly.