2006 PLP 1439 (MLD)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under section 497, Cr.P.C. the petitioner seeks bail after arrest in case F.I.R. No. 233, dated 25-5-2005, registered under section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station, Sadder Depalpur, District Okara on the statement of Muhammad Hussain.

2. The brief allegation against the petitioner narrated by the complainant in the F.I.R. is that on 24-5-2005, at about 12/1.00 a.m. daughter of the complainant namely Mst. Yasmeen wife of Akhtar had gone to the field for plucking chilies. Talib Hussain petitioner who was earlier hidden there in the adjacent fields came out from the crop of maize. He caught hold of the victim, put his hand on the mouth of the victim and after taking her to the crop of maize committed Zina-bil-Jabr with her. On the hue and cry of the daughter of the complainant, the witnesses attracted to the spot and saw the occurrence.

3. Learned counsel for the petitioner conceded that the petitioner had earlier moved an application through him for bail before arrest in the Court of learned Additional Sessions Judge, Depalpur, District Okara which was dismissed and then the application moved before this Court for bail before arrest through him was also dismissed on merits by this Court vide order, dated 16-12-2005. Thereafter, application seeking post-arrest bail was moved in the Court of learned Additional Sessions Judge, Depalpur on 17-12-2005, which was allowed vide order, dated 20-12-2005. In the meanwhile, an application for cancellation of bail was moved by the complainant, which has been accepted on 1-6-2005 by the learned Additional Sessions Judge, Depalpur District Okara on the ground that concealment was made that pre-arrest bail petition of the petitioner was dismissed by the High Court. It is contended by the learned counsel for the petitioner that as criteria for petition for pre-arrest bail and post arrest bail is entirely different, it was not felt necessary to mention about the rejection of the petition for bail before arrest by this Court in the subsequent application moved before the learned Additional Sessions Judge, Depalpur, District Okara for grant of bail after arrest but the factum of rejection of previous bail petitions by the same Court was mentioned and there was no mala fide on his part, the petitioner has been declared innocent during the investigation and he may be allowed bail. I have heard the learned counsel for the parties and also gone through the contents of the F.I.R. and the documents attached with his petition. Specific allegation of commission of Zina with Mst. Yasmeen daughter of the complainant has been levelled against the petitioner. The learned counsel for the petitioner has failed to show any mala tide on the part of the complainant or the victim for false implication of the petitioner by putting at stake the chastity of the girl and involving honour of the whole family. The offence against the petitioner is covered by the prohibitory clause of section 497, Cr.P.C. If the doctor had not found any marks of violence on the body of the victim, the same cannot be treated as a contradiction in the ocular account and medical evidence and it is not sufficient to bring the case within the ambit of further inquiry. The learned Additional Sessions Judge, Depalpur District Okara had rightly cancelled the bail of the petitioner and I also see no reason to grant bail to the petitioner merely on the ground that he has been declared innocent by the Police as the finding of the police is not binding on the Courts. This petition is dismissed.

3. Before parting from this order, I am also constrained to observe that the same learned counsel for the petitioner (Mr. Imran Chaudhry Advocate) earlier filed Crl. Misc. No.9120-B/2005 on behalf of the petitioner in this Court seeking pre-arrest bail. On 19-12-2005 he along with the petitioner appeared in the Court and ad interim bail was granted till 16-12-2005. On the said date he argues the case and in his presence the petition for bail before arrest was dismissed with certain observations. Then the same Advocate filed application for bail after arrest in the Court of learned Additional Sessions Judge, Depalpur District Okara without disclosing the factum of dismissal of the application for bail before arrest by this Court, although the note was given therein to the following effect:

The explanation tendered by the learned Advocate is that it was not felt necessary to mention about the same criteria for the bail before arrest and bail after arrest is entirely different. It is noticed that when there was given a note about dismissal of pre-arrest bail petitions of the petitioner by the learned Additional Sessions Judge, Depalpur District Okara what was harmful by not disclosing in the said note that the petition of the petitioner for pre-arrest bail was also dismissed by this Court. The contention of the learned counsel that the said factum was brought into knowledge of the Additional Sessions Judge, Depalpur District Okara during the argument by producing copy of this Court's order is not borne out from the order, dated 20-12-2005 whereby the petitioner was earlier allowed bail. It had been held by the Hon'ble Supreme Court of Pakistan in the State v. Zubair and 4 others (PLD 1986 SC 173), that "it is 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." Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the decisions of the august Supreme Court have binding force. As such Mr. Imran Chaudhry. Advocate High Court is prima facie found guilty of professional misconduct and also contempt of Court by not complying with the direction issued by august Supreme Court of Pakistan in the above cited judgment. He is served with a notice to show cause that why he should not be proceeded and punished under the provisions of Contempt of Court Ordinance, 2004, which he has accepted while present in the Court. The reply thereof shall be submitted by the said Advocate within 7 days and the case will be relisted immediately thereafter. Separate file shall be prepared by the office.

4. The office shall also send a Reference against Mr. Imran Chaudhry, Advocate High Court to the Punjab Bar Council for proceeding against him under section 41 of the Legal Practitioners and Bar Councils Act, 1973. As for the time being the said Advocate has failed to satisfy the Court about the alleged misconduct committed by him, while exercising the powers conferred by section 57 of the Act ibid it is directed that till the final disposal of the Reference by the Punjab Bar Council made under section 41 the licence of Mr. Imran Chaudhry, Advocate will remain suspended and he will not appear in any Court Proper notification shall be served upon all the concerned. H.B.T./T-18/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.