MUHAMMAD MANSHA Versus THE STATE

MAMOON KAZI, J.‑The petitioner has sought leave to appeal in respect of the order passed by a learned Judge of the Lahore High Court dated 24‑10‑1995 whereby bail granted to the petitioner by the learned Additional Sessions Judge, Sheikhupura vide his order dated 18‑5‑1995 was cancelled.

2. The brief facts of the case are that on 19‑1‑1995 one Anwar Hussain lodged F.I.R. at 10‑05 4Lm. at Police Station City Division, Sheikhupura against the petitioner and co‑accused War alleging that at about 9‑30 am. on the said date when he alongwith P.Ws. Khalid Shah and Habib Ali went to meet his brother, Syed Arif Hussain Shah, the two accused armed with a pistol and a rifle respectively fired at Arif Shah near Chowk of a street and caused his death. The bullet fired from the petitioner's pistol hit the deceased on right side of abdomen and the shot fired by the co‑accused hit him on his neck.

3. F.I.R. in respect of the incident was recorded by Sub‑Inspector Muhammad Ashraf, S.H.O. at the place of occurrence on the basis of which a formal F.I.R. was recorded at the Police Station by M. Amin, A.S.I. and investigation was thereafter started.

4. Although, a rifle said to have been used in the alleged crime, w recovered from co‑accused War on L3‑2‑1995 but nothing was recovered from the petitioner.

5. Post‑mortem of the deceased conducted by Dr. Farooq Ahmed Kassana revealed four fire arm injuries on the person of the deceased three of which were said to be entry wounds.

6. Motive, according to the F.I.R. was given as enmity caused between the petitioner and the deceased as Khadim brother of the petitioner had been murdered 10/12 years prior to the occurrence for which blame had been placed upon the deceased.

7. The Police Officer who conducted the investigation found the petitioner innocent on the basis of a plea of alibi raised by him during the course of investigation and his discharge from the case was recommended. However, a second investigation in the case was ordered by Inspector‑General of Police, Punjab and during further investigation it was opined by the second Investigating Officer that the initial investigation had not been conducted fairly by the then Investigating Officer and the petitioner was found to be prima facie guilty of the offence alleged against him.

8. The petitioner thereafter filed his bail application before the Court of .Session and the learned Additional Sessions Judge, Sheikhupura before whom the bail application was placed, found the case to be requiring further enquiry and consequently, the petitioner alongwith his co‑accused was admitted to bail in the sum of Rupees one lac with two sureties. The main ground that had impressed the learned Additional Sessions Judge was the fact that the petitioner had been found innocent after the first investigation by the then Investigating Officer which had rendered the prosecution story doubtful notwithstanding the fact that the petitioner had been made in the F.I.R. and one of the fatal shots had also been attributed to him.

9. However, the complainant filed an application under section 497 (5) of the Cr.P.C. for cancellation of bail before the Lahore High Court and the learned Judge hearing the case finding himself convinced in regard to a prima facie case being established against the petitioner by the second investigation, recalled the order earlier passed by the Additional Sessions Judge. He found that the discretion had been exercised by the learned Additional Sessions Judge arbitrarily and against the law laid down by the superior Courts and in the end he directed him to appear in person before him on 14‑11‑1995.

10. When the leave petition was placed before us for hearing on 22‑11‑1995 the complainant requested for time to engage a counsel. consequently hearing of the case was adjourned to 27‑11‑1995. However, in the meanwhile, vide an interim order passed by this Court, that part of the order of the High Court was suspended whereby the Additional Sessions Judge had been directed by the learned Judge of the High Court to appear before him in person as we had been told that no such appearance had yet been made before the learned Judge of the High Court and the case had been adjourned for such purpose to 3‑12‑1995.

11. Today, we have heard Sardar Muhammad Dogar and Mr. Khizar Hayat Khan learned counsel appearing on behalf of the petitioner and the respondent respectively.

12. As regards the merits of the case, the main contention of Sardar Muhammad Dogar before us has been that although discretion had been properly exercised by the learned Additional Sessions Judge which did not call for interference by the High Court but in any case, since the case had been fixed for recording of evidence before the learned trial Court, the order passed by the Additional Sessions Judge should not have been reversed by the learned Judge of the High Court. Reliance in this regard has been placed upon Shahid Arshad v. Muhammad Naqi Butt (1976 SCMR 360) wherein the order of the High Court granting bail to the accused, although was viewed with disapproval by this Court, but nevertheless this Court declined to interfere with such order on being informed by the counsel for the State that inquiry proceedings were likely to conclude soon. In this case bail had earlier been refused by the High Court notwithstanding the plea of alibi taken by the accused as it was felt, that the question regarding alibi could appropriately be determined by the trial Court at the time of the trial. Nevertheless bail was subsequently granted by the learned Judge of the High Court. In another case reported as Sher Muhammad v. The State (1994 SCMR 549) the petitioner was enlarged on bail by this Court, in view of the fact that different investigations had been conducted against the accused and in the last investigation, S.P. had declared four persons as innocent and had expressed further doubt about the presence of the petitioner at the scene of the crime. .

13. We are, however, of the view that in the present case, the petitioner was named in the F.I.R. as one of the main accused in the case and a specific role was assigned to him. One of the fatal injuries was also said to be caused by him to the deceased. Although no recovery was shown to have been made from the petitioner, but the, same by itself cannot detract from the prosecution otherwise making out a prima facie case against the petitioner. No doubt, there was evidence regarding alibi which was earlier found to exist by the Investigating Officer in this case which was also taken to be a strong factor leading the Additional Sessions Judge, Sheikhupura to an inference that the case of the petitioner required further inquiry, but such opinion being based on the ocular evidence of witnesses and not being corroborated by any other reliable evidence produced by the petitioner before the Investigating Officer, the same cannot be taken into consideration for the purpose of granting bail to the petitioner. The two judgments of this Court relied upon by Mr. Dogar also do not advance the petitioner's case because in Shahid Arshad's case the, enquiry proceedings against the accused were about to be concluded; whereas in the present case the trial has not 'yet begun. Reference to the judgment in Sher Muhammad's case is also misconceived as there exists a prima facie case against the petitioner, as was pointed out earlier. Therefore, the view taken by the learned Judge of the High Court in this regard appears to be correct. Consequently, we are not inclined to grant leave to the petitioner and the petition is, therefore, dismissed.

14. In the end, we would like to point out that calling of the learned Additional Sessions Judge, Sheikhupura by the learned Judge of the High Court for appearance before him in person can only be viewed by us with strong disapproval. Adoption of such a procedure by the learned Judge of the High Court besides causing embarrassment to the concerned Judge, may discouiage and demoralise even other subordinate judicial officers in the Province. In any case, requiring of the Additional District Judge to personally appear was absolutely unnecessary. Therefore, the observations made by the learned Judge of the High Court in para. No.9 of the judgment directing the Additional Sessions Judge, Sheikhupura to appear before him in person are expunged. The same can be said about the observations in the impugned order showing that, extraneous considerations might have weighed with the learned Additional Sessions Judge while granting bail to the petitioner. The said observations, to say the least, are unjust and uncalled for and therefore, the same are also expunged.

(Sd.)

Mamoon Kazi, J J.

I agree, and have added a note,

(Sd.)

Fazal Karim, J,

FAZAL KARIM, J.‑‑‑As the matter concerns the administration of justice, I am tempted to add the following few observations.

2. The subordinate Courts or the inferior Courts as they are sometimes called are an integral part of the judicial system of our country. The description "inferior Courts", or "inferior tribunal" is a categorising and not a derogatory description. Such Courts or tribunals "are not inferior in the doing of justice; nor in the judges who man them, nor in the advocates who plead in them" (Lord Denning in 'Attorney‑General v. B.B.C. (1981) A.C. 303, 313). The rule of law depends upon public confidence and public acceptance of the judicial system; therefore, anything which tends to undermine that confidence in the judicial system must be strongly discountenanced. It is for these reasons that we feel that the observations in the order of the learned Judge in the High Court that there were some extraneous considerations which weighed with the learned Additional Sessions Judge for granting bail to Mansha and the direction in para. 9 of the judgment that "Mr. Ghulam Mustafa Shahzad, Additional Sessions Judge, Sheikhupura to appear in person before this Court on 14‑11‑1995" should not have been made. The sweeping condemning observation that the learned Additional Sessions Judge was moved, in making the impugned order, by "extraneous considerations" and the direction referred to above, must necessarily shake the public confidence' at least the confidence in that officer of the people of the district where he is for the ‑time being serving; it is the more serious because the officer had had no opportunity of explaining his position before the observation was made.

N.H.Q./M‑3187/S Leave refused.