2011 PLP 50 (YLR)

TUFAIL H. EBRAHIM, J.

The facts leading to the filing of the above Criminal Miscellaneous Applications are that the complainant is aggrieved and dissatisfied with the orders passed by the learned IInd Additional Sessions Judge, Malir, Karachi, whereby pre-arrest bail was granted to respondent No.1 and co-accused by the learned IInd Additional Sessions Judge, Malir, Karachi, in Criminal Bail Applications Nos.172 and 222 of 2010 vide respective orders dated 16-3-2010 and 3-4-2010 in a case registered at Police Station Ibrahim Haidery (F.I.R. No.234 of 1990), under sections 337-A(iv)/ 337-A(i), P.P.C. According to the F.I.R. the complainant reached at Police Station Ibrahim Haidery and orally reported that he resides at house No.F-15, Phase II, DHA, Karachi along with his family members and from him one person Jawaid Akhtar and his wife Margaret had taken a loan and at the time of taking loan cheques of different banks were also given to him. On 20-9-2009, the complainant made a phone call to Jawaid asking him to return the amount as per his promise whereupon Jawaid replied to collect the amount from him at Bihar Colony. On the .day pf incident at 2-00 p.m. the complainant along with his children and driver Sarwar and Shakeel reached at Bhittai Colony, the complainant along with his children went for hair cutting of his children from the barber shop of Azam and Qasim near Abbasi Kiryana Store, Shamim Masjid Road. While Sarwar and Shakeel remained sitting in the car, then at about 2-30 p.m. Jawaid Akhtar, Sarfaraz and Iqbal and one another unknown person, whom the complainant can identify, entered in the barber shop and all the four persons started beating the complainant. Iqbal caused saria (iron rod) blows on the head of the applicant, due to which the applicant started bleeding from his head, Sarfaraz caused injury on the nose of the applicant with some substance due to which the applicant also started bleeding from his nose, Jawaid caused injuries with the glass (sheesha) in his hands due to which the applicant sustained injuries at his two fingers and the unknown person had kicked over the private part of the applicant due to which the applicant sustained injuries and on hearing hue and cry of my children, Sarwar Shakeel and other people also entered into the shop and saved the applicant. The complainant sent his children to his house with the driver and thereafter went to the police chowki Bhittai Colony, Ibrahim Haidery and lodged a report against Akhtar son of Bhakhshish Masih, Iqbal son of unascertainable, Sarfaraz son of unascertainable and one unknown person, whom the applicant can identify, causing assault and injuries and wanted to go to the hospital and action may kindly be taken. After registration of F.I.R. respondent No.1 and co-accused surrendered themselves before the learned District and Sessions Judge, Malir, Karachi and applied for pre-arrest bail vide Criminal Bail Application No.592 of 2009; which application was transferred to IInd Additional Sessions Judge, Malir, who, after the grant of ad interim pre-arrest bail to all the three accused persons, issued notice to prosecution for confirmation and subsequently dismissed the pre-arrest bail to all the three accused persons vide order dated 11-11-2009. All the three accused persons (respondent No.1 and the co-accused) applied for bail before arrest before this Court vide Criminal Bail Application No.1259 of 2009, which was also dismissed vide order dated 18-11-2009. According to the applicant respondent No.1 again applied for bail before the learned District and Sessions Judge, Malir vide Criminal Bail Applications Nos.172 and 222 of 2010, thereby suppressing the facts that any bail application was moved before this Court and by mentioning that his first Criminal Bail Application No.592 of 2009 was moved before the learned District and Sessions Judge, Malir, Karachi, which was transferred to the learned IInd Additional Sessions Judge, Malir, Karachi and was subsequently dismissed vide order dated 11-11-2009 and thereafter at the request of accused persons a Medical Board was constituted, which suspended the Medical Certificate, as the applicant never appeared before the Medical Board. The learned IInd Additional Sessions Judge, Malir, Karachi, granted ad-interim bail to the respondents vide order dated 10-3-2010 and 1-4-2010, which was subsequently confirmed vide order dated 16-3-2010 and 3-4-2010. According to learned counsel for the complainant the bails granted by the learned trial Court in both the above cases are liable to he cancelled as the same have been obtained by concealment of the orders passed by the High Court of Sindh in Criminal Bail Application No.1259 of 2009, whereby the bail to both respondent No.1 (in both the applications) was not confirmed. Per learned counsel the respondent No.1 was able to manage cancellation of Medico Legal Certificate behind the back of the complainant and the application before the IInd Additional Sessions Judge, Malir was moved in a clandestine manner and bail was obtained by respondent No. 1 in Criminal Miscellaneous Applications Nos.195 and No.196 of 2010 behind the back of the complainant, therefore, the complainant remained unaware about the pendency and subsequent grant of Bail Applications Nos.172 and 222 of 2010 in favour of respondent No.1 in both the above Miscellaneous Bail Applications and could not oppose the same, hence the complainant has filed the above Criminal Miscellaneous Applications for cancellation of bail. In support of his contentions the learned counsel has relied upon the case of Shahdat Ali v. Mubarik Shah and another (PLD 1986 SC 347), it was held:-- S.498

Penal Code (XLV of 1860), Ss.302/34 & 307/34

Pre -arrest bail, grant of

Conduct of accused

Accused found guilty of suppression of material facts for which no plausible explanation was forthcoming

Such mis-represen tation or suppression was likely in result in grave miscarriage of justice apart from its being to great abuse by parties

Person indulging in such suppression of facts, held, could not be allowed to reap its benefits or to enjoy its results

Order of High Court granting pre-arrest bail to accused was set aside and bail was cancelled." Nazir alia Jeera v. The State, (PLD 1981 SC 240), it was held:-- "Ss.497/498

Bail

Misleading of Court

Bail granted to petitioner by Sessions Court cancelled on grounds of previous order passed by High Court having not been, brought to Court's notice and there being an uncontroverted assertion of petitioner having attempted to suborn evidence

Second petition for bail dismissed by a Single Judge of High Court

Attempt having been made by petitioner to mislead a Court of law, no justification, held, existed for interference with order refusing concession of bail to petitioner

Constitution of Pakistan (1973) Art.185(3). " Amir Khan v. The State (1970 SCMR 189) it was held: "(b) Criminal Procedure Code (V of 1898) S. 498

Bail

Accused in succeeding in getting interim bail, by willfully suppressing fact of his earlier bail application having been rejected

Bail subsequently cancelled

No one, held, can claim Court's assistance unless he comes before Court with clean hands." Learned counsel for the complainant relied upon case of Muhammad Hayat v. The State (2002 YLR 2733) it was held:-- "Protective pre-arrest bail

Accused had suppressed the fact of filing pre-arrest bail on a previous occasion and its objection on merits by the Sessions Court

Such conduct of accused was itself sufficient to decline exercise of discretion in his favour

Accused should have approached the High Court after rejection of his pre-arrest bail, but he instead applied for protective pre-arrest bail which was granted for a period of ten days by the High Court

Accused did not surrender before the Trial Court and had again applied protective bail suspension of non- bailable warrants and the proclamation order issued against him by Trial Court

Supression and concealment of the aforesaid facts by the accused alone had made him dis-entitled to the exercise of discretion in his favour

Petition was rejected accordingly." Learned counsel for the complainant relied upon case of Mst. Surrya Bibi v. Muhammad Mansha and another (2008 SCMR 558), it has been held:-- "S.324

Constitution of Pakistan, Art. 185(3)

Order of suspension of sentence set aside

Within twenty days of the unconditional withdrawal and dismissal of his first petition for suspension of sentence accused respondent moved a fresh application in High Court for the same purpose without disclosing any fresh ground and without even giving the required certificate at the foot of the application that a petition had been earlier moved for the same relief and had been withdrawn after arguing the matter at length

Fresh application had been allowed by High Court through impugned order, which had led; to the inevitable impression that the previous application had been concealed and withheld from the Court, which by itself was sufficient to deprive the accused of the benefits manoeuvred in such a manner ." Learned counsel for the complainant relied upon case of Ghulam Hussain v. Karim Baldish, and others 1987 PCr.LJ 852 it was held:-- "Bail obtained from High Court by concealing reference of earlier bail application which was dismissed on merits

Cancelled, with observation that either earlier bail application or a fresh application by accused-respondent be placed before the Chief Justice for proper orders." The learned counsel of both the respondents have argued that bail application was moved before the IInd Additional Sessions Judge, Malir as fresh ground came into existence ,as the Medico Legal Certificate obtained manipulatively by the complainant had been suspended by the Special Medical Board. Per learned counsel the non-disclosure about the refusal of bail by the High Court was not deliberate or intentional. Per learned counsel the respondents have very good case on merits more particularly in the new circumstances and since the complainant is a fraudulent person, is holding two national identity cards and his licence to practice has also been suspended by the Sindh Bar Council therefore the application filed by the complainant should be dismissed. In support of his contentions the learned counsel has relied upon the following case laws: 2006 YLR 3123, 1996 PCr.LJ 207, 2007 YLR 252, 2007 YLR 254, 1970 SCMR 786, 2004 PCr.LJ 996, PLD 2009 SC 707, 2005 MLD 1613, 2005 MLD 161, 2008 SCMR 1448 and 2008 SCMR

451. The learned Assistant Prosecutor-General, Sindh, on behalf of the State in both the above Criminal Miscellaneous Applications has fully supported the case of the complainant and has argued that the respondents having not disclosed the refusal of bail by the High Court of Sindh and, therefore, not entitled to the grant of bail by the trial Court and therefore the criminal Misc. Applications should be allowed on the grounds of suppression of facts. I have heard the counsel and perused the record of the case and the case laws referred by the counsel. The respondents were able to obtain the cancellation of the Medico Legal Certificate of the complainant in the case, admittedly the complainant was not heard prior to the cancellation of the same and thereafter both the respondents on the basis of fresh ground of cancellation of Medico Legal Certificate were able to obtain bail from the trial Court, but unfortunately suppressed the fact of refusal of bail earlier by the High Court. In the present case, the rigid principles for cancellation of bail as set by law and time and again re-affirmed by the superior courts would not come into play, as persons indulging in such suppression of facts could not be considered as persons coming to court with clean hands and on this account alone the respondent No.1 in both the cases could not be allowed to reap the benefits of bail granted by the trial Court not withstanding the fact that the respondents may have a good prima facie case for the grant of bail on merits. In the circumstances and in view of the above discussion both the applications are granted and accordingly the bail granted by the IInd Additional Sessions Judge, Malir, Karachi, in Bail before Arrest Applications Nos. 172 and 222 of 2010 are cancelled. The respondents are directed to surrender before the trial Court, who may thereafter, if they be so advised, file fresh bail applications disclosing all material facts leading to filing of bail applications in accordance with law and the Court may consider their bail applications strictly on merits. A.R.K. /S-86/K Application allowed.