2008 PLP 1129 (YLR)

RANA ZAHID MEHMOOD, J.

This is after arrest bail application in case F.I.R. No.52 of 2008 under sections 395, 354, 506, 448, 511, 342, 148, 149, P.P.C. registered at Police Station Model Town, Lahore, wherein it is alleged that the petitioners trespassed into the house of complainant and took away valuables, cash etc, etc. and also gave beating to the complainant and his family and confined them for a considerable period when police was informed and the petitioners and other seven in number were arrested while several co-accused ran away from the spot.

2. Learned counsel for the petitioners has submitted that petitioners have withdrawn their after arrest bail application from the court of learned, Addl. Sessions Judge, Lahore in order to move this Court due to the fact that the complainant is ex-Civil Judge and his daughter is a Guardian Judge at Lahore, therefore, the Sessions Court at Lahore could be under influence of the complainant side. He submitted with reference to Zahid Yousaf Gil alias Fazal Hussain v. The State 2008 PCr.LJ 131 that direct entertainment of after arrest bail application is not barred before the High Court.

3. After hearing learned counsel for the petitioners I am of the view that since no exceptional circumstances are available directly without availing remedy before the court of first instance i.e. learned Sessions Court at Lahore as in the present case after arrest bail application of the petitioners was dismissed by learned trial Magistrate where after it was incumbent upon the petitioners to move the learned Sessions Court first for after arrest $ail but the petitioners despite filing after arrest bail application before the learned Sessions Court, Lahore which was entrusted to learned Additional Sessions Judge, Lahore opted to withdraw bail application and filed instant petition before this Court directly by bypassing the learned Sessions Court. The ground put forward by learned counsel for the petitioners is that complainant is ex-Civil Judge and presently a lawyer while his daughter is Guardian Judges Lahore, therefore, Sessions Court could be under influence and biased against the petitioners.

4. The argument advanced by learned counsel for the petitioners is devoid of any substance and merit, he perhaps is under misconception about the position of the complainant and his daughter who is stated to be Guardian Judge, Lahore. The Guardian Judge is subordinate court to the Sessions Court for all intents and purposes. Sessions Court is senior court and enjoys revisional and appellate jurisdiction over subordinate courts of Civil Judges and Guardian Judges etc. By no stretch of imagination Sessions Court, Lahore could be termed to be under influence of any subordinate Civil Judge. All courts in Pakistan in their respective sphere are all independent and fair. There is no question of any influence upon them. The apprehension of learned counsel for the petitioners is highly misconceived.

5. As regards the above cited case by, learned counsel for the petitioners there is no cavil with the proposition that jurisdiction under sections 497 and 498, Cr. P. C. being concurrent and derived from practice yet it was held in case law supra that direct entertainment discretion had to be "exercised with caution under certain circumstances only". In the present case learned counsel for the petitioners has not been able to satisfy this Court that exceptional circumstances warranted entertainment of this post-arrest bail application directly by this Court instead of learned Sessions Court in the first instance. It appears that petitioners are misconceived about the factual position of a Civil Judge/Guardian. Judge qua the Sessions Court. I am therefore, of the considered opinion that present petition since does not disclose exceptional circumstances in which this Court can entertain the petition for after arrest bail ,therefore, this application directly before this Court is not maintainable. Petitioners are directed to approach the learned Sessions Court. Dismissed. H.B.T./T-39/L Application dismissed.