MAQBOOL ALAM Versus State
ORDER
MALIK HAQ NAWAZ, J.--- The petitioner was booked for the above offences under sections 324/34/114, P.P.C. vide FIR No.66/2016 dated 02.07.2016 registered at Police Station City Gilgit.
2. The brief facts of the case were highlighted in an earlier judgment handed down in Cr. Misc. No. 161/2016, which are reproduced as under:
"The short facts of the case in the background leading to the filing of this petition as contained in the FIR are that on 02-07-2016 at 11:00 a.m. the complainant and three others namely Riaz Ahmed, Rahimullah and Sanaullah had reached near the gate of Bar Room Konodas, Gilgit after attending Civil Court Gilgit. In the meanwhile petitioner namely Maqbool Alam son of Alam Jan opened indiscriminate fire on the complainant and his companions. Co-accused Javed son of Abdul Qadir, Mehboob Alam, Manzoor Alam sons of Alam Jan and Alam Jan son of Ghulam Jan were also present along with principal accused at the place of occurrence and they were abetting the principal accused namely Maqbool Jan and besides the complainant three other persons namely Riaz Ahmed, Rahimullah and Sanaullah received bullet injuries. The occurrence witnessed by PWs namely Shakoor Ahmed and Tahir Mehmood".
3. After necessary investigation the petitioner was committed to judicial lock-up and he moved an application before trial Court for concession of bail which was allowed to his co-accused Mehboob Alam but was declined up to the extent of petitioner vide order dated 27-08-2016. The petitioner approached this Court for the concession of bail, which was also declined vide order dated 24-11-2016. The petitioner once again filed a bail application bearing No. Cr. Misc. 43/2017 before this Court, which came for hearing before me on 16-03-2017 and following order was passed:
The learned counsel for the petitioner was confronted with judgment reported in 1990 PCr.LJ 1186 wherein it has been held that though the powers of High Court and Sessions Court under sections 496, 497 and 498 are concurrent but when ever factual inquiries are necessary for decision of bail application, it is always preferable that the matter be heard by Sessions Court first to whom relevant information can be more readily available. It was further held in the above judgment that entertaining the bail application directly will amount to usurp the jurisdiction of Court of Session which would be against the principles of proprietary.
The earlier petition of the petitioner was dismissed by this Court vide order dated 24-11-2016. The learned counsel failed to point out any justified reason regarding maintainability of this petition before this Court without availing the remedy before the trial Court.
4. In the light of the order of this Court supra, the petitioner moved an application before trial Court for grant of bail, which was again declined on 25-03-2017 and being aggrieved from the above order, he again has come to this Court for grant of bail.
5. The learned counsel again agitated almost all those points, which were already taken into account by the trial Court in the judgment dated 28-07-2016 and by this Court in the judgment dated 16-03-2017. The only addition in the arguments of the learned counsel was that the PWs are not appearing in the trial Court since 28-11-2016, without any legal justification and the malicious intention behind non-appearance is to prolong the agonies and miseries of the petitioner. The learned counsel submitted that one of the co-accused Mehboob Alam was released by the trial Court and under the rule of consistency, the petitioner was wrongly refused bail by the trial Court and also by this Court. Per learned counsel the detention of the petitioner will not serve any useful purpose and he may be released on bail to meet the ends of justice.
6. The learned Dy. Advocate General vehemently contended that, no fresh ground was available to the petitioner to move the petition before this Court as almost all points, which were raised in the previous bail application, were exhaustively dealt with in the judgment recorded in Cr. Misc. No.161/2016. The trial of the accused is in progress and will be concluded in near future.
7. To reach on a just conclusion I, requisitioned the file of trial Court and found that charge of the petitioner/accused was framed on 14-11-2016 and then the case was posted for prosecution evidence on 28-11-2016 but PWs were marked absent. On the next date of hearing i.e. 14-12-2016 the learned counsel for the complainant was absent and the statement of PWs could not be recorded. On 18-02-2016 and 04-03-2016 again the PWs were absent. On 20-03-2017 PWs were present but complainant was absent and case was adjourned to 11-04-2017.
8. A careful scrutiny of the order sheets shows the lethargic and unwarranted attitude of the trial Court. The mechanism to procure the attendance of witnesses is provided in section 68 to section 93-C of Cr.P.C. and this Court has already passed the judgment in case titled "Issa Khan v. The State" (Cr. Misc. 136/2016) and office was directed to circulate the same judgment to all the judges of District Judiciary of Gilgit-Baltistan for compliance in future but, it is regretfully observed that the trial Court has not bothered to follow the directions of this Court, which by virtue of Article 73 of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 have binding effect not only the Courts but on all the executive authorities. Article 73 is reproduced as under:-
Decision of Chief Court binding on subordinate Courts.---Subject to Article 47, any decision of Chief Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it.
9. The directions which are issued in paras 8 and 9 of Cr. Misc. No. 136/2016 are once again reproduced as under:
8. "It is therefore, directed that in future, it shall be the personal obligation and statutory duty of the SHO of concerned police station and Superintendent of Police of the concerned District to ensure that all processes issued by the Courts were served and executed effectively and without fail. 1 further direct to all the judges of the District Judiciary, that after taking cognizance of a case, the IO of the case shall also be summoned to attend the case on all the dates of hearing and he shall be made bound to produce all the concerned witnesses in the Court on all the subsequent dates of hearing as directed by the Court. In case of posting of any concerned investigation officer, the concerned SP will be informed in writing to depute SHO of concerned police station to ensure attendance of the witnesses in the trial Court and the Courts will not tolerate non attendance of the I.O./SHO and in future no excuse in conclusion of trial by the Courts would be acceptable. The directions of this Court are binding on all the subordinate Courts and all on the State functionaries and any default if noted or brought in the notice of this Court, strong action will be taken against the delinquents. All the Superintendents of Police must be vigilant and inform concerned SHO/IO, to comply the orders of this Court in letter and spirit and non compliance will expos them to be liable for contempt proceedings.
9. A copy of this order shall be sent to Inspector General of Police, Gilgit-Baltistan for his information and necessary action. The I.G.P will immediately circulate the same to all the SPs of Gilgit-Baltistan for their information and compliance. A copy of the same shall also be sent to all the Judges of District Judiciary for compliance. Now the chapter of non-service of summons/warrants issued by Courts of law must be closed and the learned Judges of District Judiciary should take strict action against the persons responsible, if any summonses/warrants issued by the Court are not served/executed".
10. The issue of non-compliance of process issued from the trial Court and consequences were set at rest forever, but one wonder that how the orders of this Court are being honoured even by the District Judiciary, what to talk of executive authorities, who always remain dagger drawn, with the Courts of law. A Judge sitting in judiciary must have a lion's heart to take strict action against the delinquent officials, where the orders of the Courts are thwart. The learned trial Court was under legal and moral obligation to issue notice to the I.O. of the case as the case pertains to Police Station City Gilgit just under the nose of the trial Court which he miserably failed to do in defiance of the directions contained in Cr. Misc. No. 136/2016.
11. A copy of this judgment be sent to learned Sessions Judge Gilgit for his information and to ensure that the judgments of this Court are followed in letter and spirit.
12. The petitioner committed a heinous offence, outside the Court of Sessions, while their rival group came out of the Court of Sessions after attending a case against the petitioner's party men. He has rightly been refused bail by the trial Court and the learned counsel failed to point out any legal flaw in the impugned judgment, which is upheld.
13. The petition filed by the petitioner is dismissed being meritless.
WA/150/GB Bail refused.