MUHAMMAD YOUSAF Versus STATE

ORDER

ASLAM RIAZ HUSSAIN, J .‑The petitioner seeks leave to appeal against the order of the Lahore High. Court, dated 4‑4‑1983, accepting the respon dents' application for cancellation of petitioner's bail.

2. The facts giving rise to the petition are, briefly; that Muhammad Yousaf petitioner accused alongwith Muhammad Khan and Basharat Ali of the murder of his namesake Muhammad Yousaf. According to the prosecution the petitioner felled him down while his co‑accused Muhammad Khan caught hold of the deceased's arm and sat on his chest, whereafter Basharat started cutting his (deceased's) right arm with his chhurri while Muhammad Khan gave a hatchet blow on the right arm, amputating it from the elbow.

Muhammad Yousaf petitioner applied for bail before Malik Muhammad Afzal, Additional Sessions Judge, Faisalabad, on 2‑9‑1981, on the ground that he was an old man and had been falsely involved for extraneous reasons; that there was a single injury and that too was not on any vital part of the deceased's body.

This application was dismissed by the Additional Sessions Judge on 15‑9‑1982. The petitioner then filed another bail application on 17‑10‑1982 which too was dismissed by the same learned Additional Sessions Judge, on 15‑11‑1982. The petitioner filed yet another bail application through jail on 30‑11‑1982, on the same grounds. Malik Muhammad Afzal the learned Additional Sessions Judge who had dismissed the earlier bail application, was still posted at Faisalabad but that bail application was not placed before him but was fixed for hearing before Ch. Fazal Karim, Session Judge, who accepted the same and granted bail to the petitioner.

Feeling aggrieved the complainant filed an application for cancellation of bail before the High Court. The learned Single Judge of the High Court accepted the application and cancelled the bail vide the impugned order dated 4‑11‑1983.

Muhammad Yousaf accused/petitioner has now challenged the said order before this Court through the present petition for leave to appeal.

3. We have heard the learned counsel for the petitioner and gone through the impugned order of the learned Judge in Chamber. It has been observed in paragraphs 7 and 8 thereof as follows :

"7. It will be seen that a learned Additional Sessions Judge had twice rejected the bail applications made by the respondent No. 1. There was an interval of only one month between the first two applications. The third application with no fresh grounds was sent only 15 days after the rejection of the second. In the circumstances, the third application should not have been entertained, what so speak of being accepted, and must have been summarily rejected.

8. In any case, propriety 'and the established practice, require that the third application was decided by the same Court which rejected the first two: The copy of the order shows that this application was coming up for hearing on 14‑12‑1982, 20‑12‑1982, 5‑1‑19$3, 8‑1‑1983, 16‑1‑1983, before it was allowed on 23‑1‑1983. On all the. previous dates Malik Muhammad Afzal, Additional Sessions Judge, who rejected the first two applications was functioning as Additional Sessions Judge at Faisalabad. It is not clear whether this case was before him and if so why, so many adjournments were being given. Anyway, it must have been decided either by the same Court or the learned Sessions Judge should not have allowed the application when the same had been dismissed twice by a Court of equal jurisdiction, on more or less the same grounds or the grounds that had remained available to the respondent throughout before. It must be noted that the facts of the police file, relied by the learned Sessions Judge, for granting bail on the third application were not a fresh discovery as they cannot be said to have been concealed or kept away on the first two occasions."

The learned High Court Judge also considered the application on merits and dismissed the same. We are in respectful agreement with the observations made by the learned Judge in Chamber in paragraphs 7 and 8 of the impugn ed order (reproduced above). It was highly improper to have kept the bail application pending instead of fixing it before the same learned Addi tional Sessions Judge who had heard and disposed of two earlier bail supplications he fixed it before himself and granted bail to the accused. Such conduct is bound to create serious misgivings in the public mind against judicial officers. It appears that the matter was not brought to the notice of the Chief Justice, Lahore High Court because, otherwise he would have, certainly enquired into it.

As already observed the learned High Court Judge has also dismissed the bail application on merits. No good ground has been made out for interference with the said order. The petition is; therefore, dismissed.

Copy of this order should be sent to the Registrar, Lahore High Court, Lahore, who shall bring it to the notice of the Hon able Chief Justice of the Lahore High Court.

M. Z. M. Petition dismissed.