P L D 1963 (W (PLP)

S. M. Hussain for Respondent. This is an application for bail on behalf of two persons who are alleged to have been bringing cardamom, smuggled into Pakistan from India in a car, driven by another person who is a co‑accused with the present petitioners. 2. In the application, the case for the prosecution is repre sented to be that the petitioners were proceeding in the direction of Kasur (i.e. towards the border) in a taxi and that the cardamom in question was found in the dicky of the taxi cab, suggesting that passengers in a hired car, are not expected to know what is not visible to them and is lying in the dicky of the hired cab. From the direction in which it was alleged that the taxi was proceeding, the inference would be that whoever was taking the cardamom, was taking it in the direction of the border, suggest ing that the cardamom was to be smuggled out of Pakistan which on the face of it would be an improbable allegation, since cardamom is not a product of Pakistan. The allegation, as now explained by the learned counsel for the State, is different. The smuggling is alleged to have been done in a private car. The smuggled goods are alleged to have been lying on the rear seat of the car and not in the dicky. 3. It is quite clear that the allegations of the prosecution were not correctly represented in the bail applications. No certified copy of any document containing the case of the prosecu tion was filed with the application. Nor was any affidavit filed in support of the allegations of fact contained in the applica tion. The learned counsel who appears in this application, says that he made the statements contained in the application, on instructions received from those who came to engage him on behalf of the applicants. No written instructions by them are available. It seems to me that it is not consistent with the responsibility of counsel to make averments of fact in applications and petitions, on information received through undisclosed sources. It is not proper for the office to receive applications in which averments of fact are made, when those averments are not supported by a solemn deposition of someone who says that those averments are true. Otherwise when the kind of situation arises, as has arisen in this case namely, that an application is admitted on the faith of certain allegations of fact being true, which turn out later to be incorrect‑it is not possible to hold anyone fully responsible for the factual errors. The learned counsel would say, as the learned counsel in this case has stated, that he acted on instructions. The applicants would say, if asked, that they, being in jail, never came in contact with the learned counsel, and, therefore, they cannot be held responsible for having given wrong instructions. The person who gave the actual instructions would not necessarily be traceable because several relatives and well wishers of accused persons ordinarily approach the lawyer engaged for the defence of the accused, and any one of them may have said that which the counsel may have incorporated into the petition as instructions. It is important that learned counsel should realise their responsibility and not regard as instructions anything which they have not satisfied themselves about as having been given by or at the instance o the party concerned. Normally, in a bail application, I would be considering only the question whether it was necessary to deprive an accused person of his liberty to ensure that he does not defeat his trial and if I find that it was not necessary to deprive him of his liberty for that purpose, the only other question I would consider would be whether he was likely to take advantage of his liberty to commit other offences of the same kind. In this case, however, I am inclined to take another matter into consideration. I must impute the inaccuracy in this application to the applicants themselves. Having done so, I must hold that the applicants have not come to this Court with clean hands, and in that view of the matter, I do not think they are entitled to have this petition heard. I refuse to consider this application any further. 4. The learned counsel for the petitioners explains that having gone through the record, it was he himself who, in the first instance, at the opening of the argument, corrected the factual inaccuracy in the application and had stated that the car was coming from the Lulliani side and further that the cardamom in question was alleged to have been lying on the rear seat and not in the dicky as stated in the application. This is correct. The learned counsel did himself say both these things at the commencement of the argument. The fact that according to the prosecution, the car in which the cardamom was being taken was not a taxi, was, however, not stated by the learned counsel at that stage. This fact was mentioned for the first time by the learned counsel for the State. The learned counsel for the petitioners explains that, according to his present instructions, the car was a "private taxi". He, however says that the posi tion of the accused persons even now is that the cardamom in question was in the dicky of that car and not on the rear seat as is being alleged. He further points out that in the applica tion it was nowhere stated that the cardamom was being smugglled out of Pakistan, nor was any such thing implied. The mere fact that it was stated that the car was proceeding to Kasur was not enough to raise any such implication. It was only an inconsequential factual inaccurracy. 5. I do not think any of these circumstances makes any difference to the position that the application as put, contained averments of fact which, if true, would go a long way to show that the petitioners were not guilty of the offence with which they were charged. 6. I dismiss this petition. A. H. Petition dismissed.