2002 PLP 913 (YLR)

Muhammad Nawaz Sulehria for Tanvir Aslam Complainant. Maqbool Ahmed Qureshil for the State. This order is intended to dispose of Criminal Miscellaneous No. 202‑CB/2001, moved on behalf of Tanvir Aslam seeking cancellation of bail allowed to Adnan Khan, in case F.I.R. No. 354/2001 dated 15‑10‑2001, Police Station Sadar, Sialkot, under section 337‑A(ii), 337C and 337‑L(2) read with section 34, P.P.C. This shall also dispose of Criminal Miscellaneous. No.202‑CB of 2001, moved on behalf of Zeshan Khan, seeking release of bail in the same case.

2. The prosecution case, in brief, is that Muhammad Shafique son Nazir Ahmed, an employee of Tanvir Aslam (complainant) at his poultry form, was waylaid in front of the house of Dr. Khalid Pervaiz, on 14‑10‑2001 at 7‑00 p.m. by Moazzan Khan and his two sons‑Adnan Khan and Zeshan Khan. The allegation against Moazzam Khan is that he raised a Lalkara, while his above named two sons assaulted Muhammad Shafique with Sota and Churri causing injuries on Muhammad Shafique's head and abdomen.

3. Muhammad Shafique was medically examined immediately after the occurrence at 7‑50 p.m. Five injuries were observed on his person. Injury No.2, which was in the form of an incised wound, was referred to the surgeon for, expert opinion. The injury attributed to Adnan Khan attracted the provision of section 337-A(ii), which entails punishment up to five years imprisonment and Arsh, whereas the incised wound in the abdomen (injury No.2) was initially declared as Jaifah, punishable under section 337D, P.P.C. to imprisonment for ten years as Tazir.` Subsequently, on review, it was stated to be covered under section 337‑F(iv), P.P.C, which‑entails punishment up to five years.

4. Adnan Khan applied for bail‑ before arrest by Ch. Zulfiqar Ali Dhudhi, Advocate, on 16‑10‑2001 which was dismissed by Mr. Abdul Noor Nasir Additional Sessions judge, Sialkot, on 27‑10‑2001. The learned Illaqa Magistrate declined to release the accused on bail after his arrest vide an order dated 14‑11‑2001, whereupon Adrian Khan, again, applied to the Court of Sessions through Ch. Zulfiqar Ali Dhudhi, Advocate, on 20‑11‑2001, without making any reference to his earlier petition for bail before arrest. In the absence of any note, this application was entrusted to the Court of Mr. Muhammad Saleem Khan, Additional Sessions Judge, Sialkot, by the learned Sessions Judge, for disposal, who allowed the same on 29‑11‑2000. Feeling aggrieved the complainant has moved this petition seeking cancellation of bail mainly on the ground that the bail order was procured through deceitful means by way of wilfully suppression the fact that the earlier petition for bail before arrest was dealt with by Mr. Abdul Noor Nasir, Additional Sessions Judge, Sialkot. Learned counsel for the complainant contended that Ch. Zulifqar Ali Dhudhi, Advocate, wilfully omitted to mention earlier disposal of the application for bail before arrest by Mr. Abdul Noor Nasir, Additional Sessions Judge, and successfully managed to get the bail application fixed before Mr. Muhammad Saleem Khan, Additional Sessions Judge, Sialkot, who did not advert to the objection raised on behalf of the complainant in this regard and released the accused on bail. He relied upon (1) 1999, PCr.LJ 1759, (2) PLD 1986 Supreme Court 173 and (3) 1997 SCMR 1336.

5. Learned counsel for the, respondent/accused has been fair enough to concede that the disposal of bail application by Mr. Muhammad Saleem Khan, Additional Sessions Judge, Sialkot, despite the objection having been raised on behalf of the complainant was improper and opposed to the established judicial norms.

6. I have considered the arguments put forth by the learned counsel for the parties. The failure on the part of Ch. Zulfiqar Ali Dhudhi, Advocate, to make mention of the disposal of the earlier application for pre- arrest bail of Adnan Khan by Mr. Abdul Noor Nasir, Additional Sessions Judge, appears to be intentional, which may be described as professional misconduct. I am therefore, constrained to disapprove his conduct. In all fairness, it was imperative upon him, while making the application for bail after arrest to make a reference of the earlier application by giving a separate note on the application. Had he given such a note. I am sure, the second application of the accused must have been entrusted to the same Court which had earlier disposed of the application for bail before arrest. Propriety demands that ordinarily all such applications should be dealt with by the same Court in order to maintain consistency in judicial decisions. I am, also, constrained to observe that the learned Judicial Officer has also not acted in a judicial and prudent manner while dealing with the objection raised on behalf of the complainant that it was not proper for him to deal with the bail petition as the earlier application for bail before arrest had been dealt with by some other Additional Sessions Judge. This objection has been dealt with by him in para No.7 of the impugned order in a highly improper way, as if he was keen to hear the petition. He is, therefore advised to be careful in future.

7. Since the respondent/accused has earned the concession of bail in a highly improper manner, therefore, without touching the merits of the case, I consider it proper to withdraw the same in order to discourage those, who knowingly violate established judicial norms and gain even petty concessions through deceitful means.

8. Now, I proceed to deal with the application for bail after arrest moved on behalf of Zeshan Khan, accused. He is alleged to have given a Churri blow in the abdomen of Muhammad Shafique. Initially, it was opined that it attracted section 337C. P.P.C. but finally it has been declared as section 337‑F(iv), P.P.C. which entails punishment upto five years. The petitioner has been in prison for a sufficient long period. He is .not required for any useful purpose, therefore, he is ordered to be released on bail subject to furnishing bail bond in the sum of Rs.50,000 (rupees fifty thousand) with one surety in the like amount to the satisfaction of the Illaqa/Duty Judicial, Sialkot. Resultantly, both these petitions are hereby allowed. Adnan Khan accused would be at liberty to move to the Courts below for the grant of bail after arrest, which shall be dealt with in accordance with law without being influenced by any observation made above. A copy of this order shall be sent to the learned Additional Sessions Judge through the District and Sessions Judge, Sialkot. H.B.T./T‑87/L Petitions accepted.