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Criminal Miscellaneous No. 789/B of 1976, decided on 12th March 1973.

---S. 497 (S)‑Bail cancellation of ‑Trial already started and part of evidence reworded while date for recording statements of eye‑witnesses fixed by Court ‑‑‑Cancellation of bail at this stage, held, was likely to influence trial‑Cancellation of bail declined, in circumstances.‑‑[Bail].

M. G. Cheema for Petitioner.

Hakim Ali Dogar for Respondents.

Abdul Wahid for the State.

Date of hearing: 12th March 1976.

This is an application for cancellation of the bail granted by this Court on 24‑2‑1976 while disposing of Criminal Miscellaneous 576‑B of 1976.

2. I understand that the trial has already begun and a part of the evidence has been recorded by the learned Sessions Judge and the statement of the eye‑witnesses are to be recorded tomorrow. If the bail is cancelled at this stage, this might influence the trial one way or the other. Hence in the circumstances, without adverting to the merits of the case, I am not inclined to set aside my previous order dated 24‑2‑1976, granting bail to the respondents.

3. Mr. M. G. Cheema, Advocate, however also brought to my attention, what he described as gross professional misconduct of Mr. Hakim Ali Dogar, Advocate, who appeared for the accused/respondents in the has; application (Criminal Miscellaneous No. 576‑B of 1976). To appreciate his submission it is necessary to mention that this Court had dismissed the application for bail, preferred try the respondents, vide order dated 17‑11-1975 passed in Criminal Miscellaneous No. 4739‑B of 1975, but at the same time observed that the learned Sessions Judge shall dispose of the, Sessions trial within three months. In the application for bail preferred on behalf of respondents Nos. 1 and 2 (Criminal Miscellaneous No 576‑B of 1976), Mr. Hakam Ali Dogar, Advocate, inter alia, submitted as follows :‑‑‑

"'That this Hon'ble Court directed the learned Sessions Judge to dispose of the case within three months, but this direction has not been complied with. The trial has already been delayed in the normal course and there is no prospect of early disposal of this case."‑

4. When this petition came up before me on 17‑2‑1,976, while issuing notice to the State I also observed as follows :‑‑

"Meanwhile, the Sessions Judge, Gujrat, be asked to intimate as to what is the expected date on which this Session trial can be taken up for disposal. The said report should be obtained within one week."

When the case came up on 24‑2‑1976, the report had not been received by then, and considering the merits of the case, the respondents were ordered to be released on bail in the sum of Rs. 20,000 each with one surety each in the like amount to the satisfaction of the Assistant Commissioner, Gujrat.

5. Mr. M. G. Cheema, Advocate, has stated that although Mr. Hakam Ali Dogar, Advocate, was aware of the fact that the learned Session Judge bad started proceedings in the Sessions trial in pursuance of this Court's order, he misled the Court into thinking that the case was not likely to be taken up for quite some time and, therefore, by fraudulent means Obtained the order of bail. In this connection he pointed out that only two days after the bail application was moved (Criminal Miscellaneous No. 576-B 1976), Mr. Hakam Ali Dogar, Advocate, himself moved an application urn behalf of the said respondents (Criminal Miscellaneous No. 37/T of 1976) 18‑2‑1976, in which, Inter‑alia, the following assertion was made :‑

"(d) That the learned Sessions Judge had proceeded with the case in a hasty manner, without giving the accused persons reasonable opportunity of defending themselves. Notice was served on the accused on 7‑2‑1976 and the case was fixed for 9‑2‑1976. Reasonable time was not given to the accused persons . . . . :"

Thus, it is submitted that at least on 24‑2-1976 Mr. Hakam Ali Dogar, Advocate, was aware of the fact that the order of this Court passed in Criminal Miscellaneous No. 4739‑8 of 1975 was being observed.

6. Mr. Hakam Ali Dogar, Advocate, was called upon to explain why a complaint should not be made to the Bar Council for taking action against him for professional misconduct and in the meanwhile the order of his suspension from practice as Advocate be not made under section 54 of the Legal Practitioners and Bar Council Act 1973. He has explained that when the bail application (Criminal Miscellaneous No. 576‑B of 1976) was moved on 16‑2‑1976, he was not aware of the fact that the trial had been fixed for 9‑2‑1976 and it was only on 17‑2‑1976; after the order was passed by this Court issuing notice to the state and calling for a report from the learned Sessions Judge that he came to know about this fact and, thereafter, on 18‑2‑1976 moved the transfer application, bearing Criminal Miscellaneous No. 37‑T‑1976. However, he did not conceal the fact of the bail application filed by him as reference has been made to the said application both. In clause (e) of paragraph 2 as well as in the note appended at the bottom of the petition. Further, he admitted that on 24‑2‑1976 he was aware of the fact that the learned Sessions Judge was complying with this Court's Order passed in Criminal Miscellaneous No. 4739‑B of 1975 and had started the hearing of the case, but was unable to inform the Court about this fact, as he reached late in the Court room, after the learned counsel for the State had already been heard and the order granting bail was being dictated. No doubt, the portion of the order to the effect that "The learned Sessions Judge was asked to report as to the likely, date on which the trial was to take place. He has not submitted any report to that respect so far. In these circumstances, the petitioners shall be released on bail . . . . ." was dictated in his presence, but he thought that as the bail was being granted on the merit of the case and not because the report of the learned Sessions Judge had not been received, he did not think it necessary to apprise the Court of the position with regard to the commencement of the trial before the learned Sessions Judge.

7. The explanation of Mr. Hakam Ali Dogar. Advocate, is unsatis factory, as he was duty bound to inform the Court on 24‑2‑1976 about the true position of the stage of the trial. His failure to do so was a grave act of professional indiscipline. However, as the counsel is a young man and bad made mention of the bail application, bearing Criminal Miscellaneous No. 576‑B of 1976 in the transfer application Criminal Miscellaneous 37/T of 1976), and normally the said application should have been put up before the learned Judge dealing with Criminal Miscellaneous No. 576‑B of 1976, there are extenuating circumstances, and I would, therefore, not report the matter to the Bar Council or suspend his licence ad Interim, observing that the counsel must be very careful in future and not try to withhold or omit any relevant factor bearing on a case, especially when the withholding or omitting of such a factor is material for the determination of the case. This petition stands disposed of with the above observations.

Petition dismissed,

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