2001 P Cr. L J 2068
2001 P Cr. L J 2068[Lahore]Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJHakim MUMTAZ AHMAD‑‑‑PetitionerversusTHE STATE‑‑‑RespondentCriminal Miscellaneous No.6066/B of 2000, heard on 16th July, 2001.
JUDGMENT
KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ As per F.I.R. No.358, dated 9‑9‑2000 of Police Station City, Mandi Baha‑ud‑Din, secret information had been received that one Hakeem Mumtaz was involved in the business of selling opium. On the basis of this information, a fake customer was sent, after providing him with tainted money, for the purchase of opium from the said Hakeem who allegedly sold opium to the said customer whereafter the said Hakeem Mumtaz, was searched which search led to the recovery of the said tainted currency notes besides leading to the recovery of 142 grams of opium and another amount of Rs.3,000. The said Hakeem Mumtaz accused was consequently arrested.
2. He then petitioned the Court of Session at Mandi Baha‑ud‑Din for his release on bail but his said plea was dismissed by Mr. Muhammad Alamgir Khan, a learned AddVional Sessions Judge, through an order, dated 26‑9‑2000. The reasons which had weighed with the said learned Additional Sessions Judge for refusing the said bail were that even if it was presumed that the petitioner was in fact a Hakeem, he could not offer any licence which authorised him to keep opium in his possession; that besides opium, currency notes of Rs.3,000 had also been recovered from the petitioner being the sale proceeds of opium; that although the accused claimed innocence but from the. tentative assessment of the case file, no such innocence of the accused stood established and finally that the menace of narcotics was increasing day by day which was creating bad effects on our society. The learned Additional Sessions Judge, however, further observed that the question of grant of bail or otherwise may be looked into after report of the Chemical Examiner had been received and after the challan had been submitted.
3. Mumtaz accused then 'approached this Court through Criminal Miscellaneous No.6066/B of 2000 praying for his release on bail which petition came up before this Court on 17‑10‑2000 when notice was issued to the State for the purpose. The said petition, thereafter got listed on 21‑11‑2000 when the learned counsel for the petitioner prayed for permission to withdraw the said bail petition.
4. On account of our past experience in such‑like matters, we did not permit withdrawal of the said bail petition and instead directed the learned State Counsel to find out from the concerned jail whether the petitioner was still in custody and fixed the matter for the next day i.e. on 22‑11‑2000. On the said date no one appeared for the petitioner. We were, however, informed by the learned State Counsel that during the pendency of the said bail petition before this Court, the petitioner had secured his release on bail through an order, dated 11‑11‑2000 passed by the same Mr. Muhammad Alamgir Khan, Additional Sessions Judge at Mandi Baha‑ud‑Din, who had, only six weeks earlier,, declined to grant bail to the petitioner.
5. Shocked at this conduct of the petitioner, we issued notice to him to show cause why the bail so secured by him be not recalled and we simultaneously issued warrants for the arrest of the petitioner and for his production before this Court. We also requisitioned the record from the Court of the abovementioned learned Additional Sessions Judge relating to earlier refusal of bail and the subsequent grant of bail to the said accused person.
6. The matter of bail then came up before this Court on 8‑2‑2001 when the learned counsel appearing for Mumtaz Ahmed accused expressed his inability to defend the bail in question allowed to him by the learned Additional Sessions Judge on 11‑11‑2000, which bail was consequently recalled.
7. A notice was, however, issued to Mr. Muhammad Alamgir Khan, the learned Additional Sessions Judge to explain his position vis‑a‑vis allowing bail to the said accused person within six weeks of his earlier refusal of the said relief and that also while his petition for the purpose was pending before this Court. A notice was also issued to Ch. Naseem, Advocate of Mandi Baha‑ud‑Din to explain as to why he did not disclose the factum of the pendency of the petitioner's bail application before this Court while moving the second bail application before the same learned Additional Sessions Judge.
8. A report from the learned Additional Sessions Judge as also a reply from the learned counsel have been received and perused.
9. As has been noticed above, through an order, dated 8‑2‑2001, this Court had recalled the bail allowed to Mumtaz Ahmed accused by the learned Additional Sessions Judge in the above‑noticed circumstances. Petition bearing Criminal Miscellaneous No.6066/B of 2000 praying to this Court for grant of bail to him was, however, kept pending and is being disposed of today through this order.
10. As has been mentioned above, Mumtaz Ahmed, petitioner was allegedly caught red‑handed with 142 grams of opium. There were allegations of sale of opium by him. It had also been alleged through the F.I.R. in question that he had, in fact, even sold opium to the decoy customer who had been sent to him and even the tainted sale money had been recovered from his possession. Article 3(2) of the Prohibition (Enforcement of Hadd) Order of 1979 makes such an act punishable with imprisonment for life. The case of the petitioner was thus, hit by the prohibition contained in section 497(1) of the Cr.P.C. Even otherwise, it has been repeatedly held by this Court and even so observed by the learned Additional Sessions Judge in his bail refusing order, dated 26‑9‑2000 that persons involved in the narcotics trade did not deserve any leniency or sympathy. Non‑submission of challan within 14 days was hardly a ground for releasing an accused person on bail.
11. In this view of the matter, as also in view of the above‑noticed conduct of the petitioner in securing bail from a subordinate Court by 18 concealing the fact of the pendency of his petition for the same purpose before this Court, this petition is dismissed.
12. Before we part with this order we would like to bring on record that this is not the first case which has come to our notice where bail had been secured by an accused person from a subordinate Court during the pendency of his bail petition before this Court. We are pained to observe that such a malpractice is attaining alarming proportions. The situation warrants rather strict measures to check such a misconduct. In the year 1991, this Court had issued instructions to all the Presiding Officers in the Province to insist upon a certificate with every bail application moved before the subordinate Courts, giving information whether the accused or any of his co‑accused persons had earlier tiled any bail petition before any such Court or any other Court and what was the result of the same and further whether the accused person seeking bail had filed any bail petition before any higher Court and if so then whether the same was pending or stood decided. In the year 1999 this Court reiterated the abovementioned earlier instructions because it was coming to the notice of this Court that despite the said earlier directive, the Courts were still being misled into passing unwarranted orders in the matters of bail. It is highly regretted that despite these steps taken by this Court, the situation has not improved.
13. Certificates are ordinarily given on bail applications moved before the subordinate Courts but the information given through such certificates, as is the situation in the present case, is at times false and incorrect. When the learned counsel giving such a certificate is called upon to explain as to why he had offered false information to a Court of law, the answer in most of the cases, as in the present case, is that he was not told and consequently did not know of the pendency of a matter before a higher Court or of any earlier petitions having been moved before the same Court. The result is that no one can be held responsible and thus, liable for providing untrue information to the Courts and the practice of offering false information in Courts is going on unchecked and the object for which the certificate in question was required to be given with the bail applications continues to be defeated. Having considered the matter at some length, we are of the opinion that the required purpose can be achieved only if the responsibility of providing correct information is fixed on an identifiable individual.
14. It is, therefore, directed that every learned counsel moving a bail application before any subordinate Court shall mention in the certificate the name and the address of the person on whose instructions the learned counsel supplies the information required by the said certificate. No bail application shall be entertained by any subordinate Court which does not carry such a certificate or where such a certificate does not disclose the identity of the person on whose instructions such a certificate was given.
15. Copies of this order shall be sent to all the learned Sessions Judges in the Province which learned Sessions Judges shall then circulate copies thereof to all the learned Presiding Officers within their respective jurisdiction.
16. The F.I.R. in the present case had been registered on 9‑9‑2000 on which date the accused person was also arrested. The learned Additional Sessions Judge at Mandi Baha‑ud‑Din dismissed the first bail application on 26‑9‑2000 which was after 17 days of the registration of the said case. On 11‑11‑2000, the same learned Additional Sessions Judge allowed bail to the said accused person essentially on the ground that the prosecution was bound to submit the complete challan within 14 days which had not been done whereafter the detention of the accused had become illegal. As has been noticed above, the earlier bail application had been dismissed after 17 days of the registration of the case and even if it be presumed for the sake of arguments that non‑submission of challan for 14 days was a valid ground for grant of bail to an accused person then the said ground had become available to the accused person in question even when the said first bail application was dismissed. No fresh ground had accrued to the petitioner after refusal of bail to him on 26‑9‑2000 and thus, entertaining a subsequent bail application by the learned Additional Sessions Judge was against all norms of law and propriety. Such a conduct was even offensive of the command of the Honourable Supreme Court ordained through Zubair's case PLD 1986 SC 173. The said conduct of Mr. Muhammad Alamgir Khan, the then learned 1g: Additional Sessions Judge at Mandi Baha‑ud‑Din is open to serious exception.
17. This order shall, therefore, be placed before the Honourable Chief Justice for such action against the said Additional Sessions Judge as may be deemed appropriate in the above‑noticed facts and circumstances.
N.H.Q./M‑771/L Bail refused
KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ As per F.I.R. No.358, dated 9‑9‑2000 of Police Station City, Mandi Baha‑ud‑Din, secret information had been received that one Hakeem Mumtaz was involved in the business of selling opium. On the basis of this information, a fake customer was sent, after providing him with tainted money, for the purchase of opium from the said Hakeem who allegedly sold opium to the said customer whereafter the said Hakeem Mumtaz, was searched which search led to the recovery of the said tainted currency notes besides leading to the recovery of 142 grams of opium and another amount of Rs.3,000. The said Hakeem Mumtaz accused was consequently arrested.
2. He then petitioned the Court of Session at Mandi Baha‑ud‑Din for his release on bail but his said plea was dismissed by Mr. Muhammad Alamgir Khan, a learned AddVional Sessions Judge, through an order, dated 26‑9‑2000. The reasons which had weighed with the said learned Additional Sessions Judge for refusing the said bail were that even if it was presumed that the petitioner was in fact a Hakeem, he could not offer any licence which authorised him to keep opium in his possession; that besides opium, currency notes of Rs.3,000 had also been recovered from the petitioner being the sale proceeds of opium; that although the accused claimed innocence but from the. tentative assessment of the case file, no such innocence of the accused stood established and finally that the menace of narcotics was increasing day by day which was creating bad effects on our society. The learned Additional Sessions Judge, however, further observed that the question of grant of bail or otherwise may be looked into after report of the Chemical Examiner had been received and after the challan had been submitted.
3. Mumtaz accused then 'approached this Court through Criminal Miscellaneous No.6066/B of 2000 praying for his release on bail which petition came up before this Court on 17‑10‑2000 when notice was issued to the State for the purpose. The said petition, thereafter got listed on 21‑11‑2000 when the learned counsel for the petitioner prayed for permission to withdraw the said bail petition.
4. On account of our past experience in such‑like matters, we did not permit withdrawal of the said bail petition and instead directed the learned State Counsel to find out from the concerned jail whether the petitioner was still in custody and fixed the matter for the next day i.e. on 22‑11‑2000. On the said date no one appeared for the petitioner. We were, however, informed by the learned State Counsel that during the pendency of the said bail petition before this Court, the petitioner had secured his release on bail through an order, dated 11‑11‑2000 passed by the same Mr. Muhammad Alamgir Khan, Additional Sessions Judge at Mandi Baha‑ud‑Din, who had, only six weeks earlier,, declined to grant bail to the petitioner.
5. Shocked at this conduct of the petitioner, we issued notice to him to show cause why the bail so secured by him be not recalled and we simultaneously issued warrants for the arrest of the petitioner and for his production before this Court. We also requisitioned the record from the Court of the abovementioned learned Additional Sessions Judge relating to earlier refusal of bail and the subsequent grant of bail to the said accused person.
6. The matter of bail then came up before this Court on 8‑2‑2001 when the learned counsel appearing for Mumtaz Ahmed accused expressed his inability to defend the bail in question allowed to him by the learned Additional Sessions Judge on 11‑11‑2000, which bail was consequently recalled.
7. A notice was, however, issued to Mr. Muhammad Alamgir Khan, the learned Additional Sessions Judge to explain his position vis‑a‑vis allowing bail to the said accused person within six weeks of his earlier refusal of the said relief and that also while his petition for the purpose was pending before this Court. A notice was also issued to Ch. Naseem, Advocate of Mandi Baha‑ud‑Din to explain as to why he did not disclose the factum of the pendency of the petitioner's bail application before this Court while moving the second bail application before the same learned Additional Sessions Judge.
8. A report from the learned Additional Sessions Judge as also a reply from the learned counsel have been received and perused.
9. As has been noticed above, through an order, dated 8‑2‑2001, this Court had recalled the bail allowed to Mumtaz Ahmed accused by the learned Additional Sessions Judge in the above‑noticed circumstances. Petition bearing Criminal Miscellaneous No.6066/B of 2000 praying to this Court for grant of bail to him was, however, kept pending and is being disposed of today through this order.
10. As has been mentioned above, Mumtaz Ahmed, petitioner was allegedly caught red‑handed with 142 grams of opium. There were allegations of sale of opium by him. It had also been alleged through the F.I.R. in question that he had, in fact, even sold opium to the decoy customer who had been sent to him and even the tainted sale money had been recovered from his possession. Article 3(2) of the Prohibition (Enforcement of Hadd) Order of 1979 makes such an act punishable with imprisonment for life. The case of the petitioner was thus, hit by the prohibition contained in section 497(1) of the Cr.P.C. Even otherwise, it has been repeatedly held by this Court and even so observed by the learned Additional Sessions Judge in his bail refusing order, dated 26‑9‑2000 that persons involved in the narcotics trade did not deserve any leniency or sympathy. Non‑submission of challan within 14 days was hardly a ground for releasing an accused person on bail.
11. In this view of the matter, as also in view of the above‑noticed conduct of the petitioner in securing bail from a subordinate Court by 18 concealing the fact of the pendency of his petition for the same purpose before this Court, this petition is dismissed.
12. Before we part with this order we would like to bring on record that this is not the first case which has come to our notice where bail had been secured by an accused person from a subordinate Court during the pendency of his bail petition before this Court. We are pained to observe that such a malpractice is attaining alarming proportions. The situation warrants rather strict measures to check such a misconduct. In the year 1991, this Court had issued instructions to all the Presiding Officers in the Province to insist upon a certificate with every bail application moved before the subordinate Courts, giving information whether the accused or any of his co‑accused persons had earlier tiled any bail petition before any such Court or any other Court and what was the result of the same and further whether the accused person seeking bail had filed any bail petition before any higher Court and if so then whether the same was pending or stood decided. In the year 1999 this Court reiterated the abovementioned earlier instructions because it was coming to the notice of this Court that despite the said earlier directive, the Courts were still being misled into passing unwarranted orders in the matters of bail. It is highly regretted that despite these steps taken by this Court, the situation has not improved.
13. Certificates are ordinarily given on bail applications moved before the subordinate Courts but the information given through such certificates, as is the situation in the present case, is at times false and incorrect. When the learned counsel giving such a certificate is called upon to explain as to why he had offered false information to a Court of law, the answer in most of the cases, as in the present case, is that he was not told and consequently did not know of the pendency of a matter before a higher Court or of any earlier petitions having been moved before the same Court. The result is that no one can be held responsible and thus, liable for providing untrue information to the Courts and the practice of offering false information in Courts is going on unchecked and the object for which the certificate in question was required to be given with the bail applications continues to be defeated. Having considered the matter at some length, we are of the opinion that the required purpose can be achieved only if the responsibility of providing correct information is fixed on an identifiable individual.
14. It is, therefore, directed that every learned counsel moving a bail application before any subordinate Court shall mention in the certificate the name and the address of the person on whose instructions the learned counsel supplies the information required by the said certificate. No bail application shall be entertained by any subordinate Court which does not carry such a certificate or where such a certificate does not disclose the identity of the person on whose instructions such a certificate was given.
15. Copies of this order shall be sent to all the learned Sessions Judges in the Province which learned Sessions Judges shall then circulate copies thereof to all the learned Presiding Officers within their respective jurisdiction.
16. The F.I.R. in the present case had been registered on 9‑9‑2000 on which date the accused person was also arrested. The learned Additional Sessions Judge at Mandi Baha‑ud‑Din dismissed the first bail application on 26‑9‑2000 which was after 17 days of the registration of the said case. On 11‑11‑2000, the same learned Additional Sessions Judge allowed bail to the said accused person essentially on the ground that the prosecution was bound to submit the complete challan within 14 days which had not been done whereafter the detention of the accused had become illegal. As has been noticed above, the earlier bail application had been dismissed after 17 days of the registration of the case and even if it be presumed for the sake of arguments that non‑submission of challan for 14 days was a valid ground for grant of bail to an accused person then the said ground had become available to the accused person in question even when the said first bail application was dismissed. No fresh ground had accrued to the petitioner after refusal of bail to him on 26‑9‑2000 and thus, entertaining a subsequent bail application by the learned Additional Sessions Judge was against all norms of law and propriety. Such a conduct was even offensive of the command of the Honourable Supreme Court ordained through Zubair's case PLD 1986 SC 173. The said conduct of Mr. Muhammad Alamgir Khan, the then learned 1g: Additional Sessions Judge at Mandi Baha‑ud‑Din is open to serious exception.
17. This order shall, therefore, be placed before the Honourable Chief Justice for such action against the said Additional Sessions Judge as may be deemed appropriate in the above‑noticed facts and circumstances.
N.H.Q./M‑771/L Bail refused
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