2004 PLP 745 (YLR)

PLD 1983 Pesh. 155; Muhammad Saleem Babar v. The State PLD 1987 Lah.288 and Ghulam Nabi and others v. Additional District Judge and another 1983 CLC 2382 ref. Muhammad Aslam Zia for Petitioner. Muhammad Pervaiz Chaudhary for Respondents. Maqbool Ahmad Qureshi for the State. In continuation of my order, dated 23-5-2003, learned counsel for the respondent submits that occurrence in this case had taken place on the night between 6/7-10-2001. He submits that in fact five accused were named in the F.I.R., three of them were found innocent by the S.P. Crime, including the respondent. Thereafter the complainant party filed a complaint on 21-6-2002, preliminary evidence was recorded on 21-11-2002 and then process was issued against the persons who were declared innocent. At this stage learned counsel for the petitioner submits that process was issued on 17-12-2002 while this fact is contradicted by the learned counsel for the respondent who submits that process was issued for 2-1-2003. Learned counsel submits that respondent Mustafa Ahmad had already gone to U.K. for higher education. He submits that after spending a lot of money in U.K. he sent the power of attorney in favour of Mr. Muhammad Iqbal Bhatti, Advocate and Mr. Amjad Pervaiz Chaudhary, Advocate. Learned counsel submits that learned trial Court was competent to exempt the, presence of the respondent, even if he was not present at the time of exemption. He has relied upon 2002 PCr.LJ 947 and PLD 1983 Peshawar,

155. Learned counsel submits that bail bonds have already been filed on behalf of the respondent before the learned trial Court by the father of the respondent. He submits that no illegality has been committed by the learned Judge whose order has been impugned before this. Court.

2. On the other hand learned counsel for the petitioner submits that the exemption cannot be granted unless the accused is present in Court. He has relied upon PLD 1987 Lahore 288 titled as Muhammad Saleem Babar v. The State and also he has relied, upon Article 201 of the Constitution of Islamic Republic of Pakistan, 1973 coupled with the judgment of Karachi High Court titled as Ghulam Nabi and others v. Additional District Judge and another (1983 CLC 2382). Learned counsel submits that in the judgment of the Karachi High Court, it was stated that subordinate Courts must follow the law declared by that High Court.

3. I have heard the learned counsel for the parties. In the instant case, the, exemption was granted to the respondent when he was not present before the Court. He was also granted bail before arrest, when he was not present before the Court which is clear violation of section 498, Cr.P.C. where two conditional precedents are there, i.e. (i) that the accused should be present before the Court (ii) that a case should have also been registered against the accused at that time. A complaint was present before the learned trial Court against the present respondent in which he was summoned. He never appeared before the learned trial Court. Learned trial Court was not competent to grant bail before arrest to the present respondent. The judgment relied upon by "the learned counsel for the respondent i.e. 2002 PCr.LJ 947 is not applicable in this case for the reason that in that case the accused whose presence was exempted was already granted bail before arrest, thereafter, he left the country while circumstances of the present case are totally different. Even in the judgment cited by the learned counsel for the petitioner i.e. 1983 CLC 2382 titled as Ghulam Nabi v. Additional District Judge and another, following observation in head-note `A' of said judgment was made:-- "Art. 201

Contrary view of two High Courts on one point

High Court's decisions binding on its subordinate Courts which should give preference to same to decisions of other High Court-- Such decision, held, can only yield to decision of Supreme Court."

4. After having heard the learned counsel for the parties and going through the judgments cited by both the parties and the impugned order, I set aside the impugned order and the exemption of personal presence of the respondent is withdrawn. With these observations this criminal revision stands disposed of. N.H.Q./A-881/L Criminal revision accepted.