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Criminal Miscellaneous No. 1280/B of 1982, decided on 30th October, 1982.

---Ss. 497, 190(3) & 344--Penal Code (XLV of 1860), S. 302/34--Bail- Challan received by trial Court but cognizance of case not yet taken- Trial Court failing to pass any remand order within meaning of S. 344, Cr.P.C. qua accused--Violation of provisions of section 344, Cr.P.C. makes detention of accused illegal-- Co-accused already granted bail by trial Court on ground of violation of provisions of Ss. 167 and 344, Cr.P.C.--Accused, held, entitled to bail in view of his unlawful detention and also rule of consistency.

Mehar Khan v. Yaqub and another 1981 S C M R 267 ref.

---S. 497--Penal Code (XLV of 1860), S. 302/34--Co-accused granted bail by trial Court on ground of non-existence of valid and legal remand order--Accused both on factual as well as legal plane deserving same treatment as his co-accused--Lower court in disregard to principle of rule of consistency refusing bail to accused--Accused also granted bail in view of rule of consistency.

---Ss. 497 & 344--Contempt of Court Act (LXIV of 1976), S.3 Police official failing to obtain judicial remand of accused despite clear direction given to him by trial Court--High Court issuing show-cause notice for proceedings against such police official under Contempt of Court Act, 1976.

M. Soltan Alam for Petitioner.

Bashir, Ahmad for the State.

Petitioner and two others namely, Muhammad Shafi and Maqbool. Hussain were reported against by Ahmad Bakhsh complainant at Police Station Sadar Multan that they in furtherance of their common intention committed the murder of Haji Muhammad deceased by giving him injuries with daggers on 30-12-1981 in the vicinity of village Khohar at a distance of about three miles from the police station.

2. The petitioner and his co-accused were arrested on that very day and ultimately were lodged in jail. Maqbool Hussain co-accused of the petitioner was granted bail by the learned Sessions Judge, Multan by his order dated 4-8-1982 on the ground that after 12-1-1982, there did not exist valid and legal remand order for his detention. The learned Sessions Judge, therefore, observed that the provisions of sections 167 and 344, Cr.P.C. were flagrantly violated and, therefore, detention of the petitioner was illegal and consequently, he was obliged to grant bail to him (Maqbool Hussain).

3. On the same premises Zahoor Hussain the present petitioner sought bail and the learned Sessions Judge dismissed his petition on 19-9-1982 and passed the following brief order:

"The Additional S.H.O. informs the Court that the Military Authorities have declined to take up the trial of the case and so the challan is being submitted in the ordinary court of civil jurisdiction. The police are directed to at once obtain the judicial remand of the accused and submit the challan in court and with this order the petition is dismissed."

Being aggrieved the petitioner has approached this Court urging that the case of the petitioner was at par with that of Maqbool Hussain his co-accused both-on factual as well as legal plane yet the learned Sessions Judge in disregard to the well-established principle of "rule of consistency" denied the relief to him unlike Maqbool Hussain his co-accused. The arguments were heard in the matter at some length on 26-10-1982 and the same was adjourned till today because the learned State counsel was not in a position to make a statement with exactitude as to whether the learned Sessions Judge having received the challan under section 190(3), Cr.P.C. has passed any order in the meaning of section 344, Cr. P . C . qua the petitioner and also whether the trial of the case has commenced or not. The learned State counsel informs that although the challan has been received in the Court of Session which has been fixed for 1-11-1982, but the cognizance of that case has not yet been taken by the learned Sessions Judge. Bashir Ahmad, S.I. who is present in Court was also asked as if he in obedience to the directions made by the learned Sessions Judge on 19-9-1982 had obtained the judicial remand to which he replied that he did not do so till today. It means that the legal position as prevailed on 19-9-1982 regarding the detention of the petitioner in jail remains unchanged till today. In these circumstances I find that in view of the recent pronouncement by the Supreme Court of Pakistan in Mehar Khan v. Yaqub and another 1981 S C M R 267 the detention of the petitioner is illegal and, therefore, he is entitled to the grant of bail. It may be stated here that the learned Sessions Judge's order dated 4-8-1982, holding the detention of Maqbool Hussain co-accused of the petitioner as illegal and consequently granting bail to him, was perfectly a legal order, but it is amazing that despite the similar grounds being available in the case of petitioner he was denied the relief. I have also noticed with dismay that the police officer namely, Bashir Ahmad S.I. who was present before the learned Sessions Judge on 19-9-1982 failed to obtain judicial remand of the petitioner despite a clear direction given to him by the learned Sessions Judge. I have issued a show-cause notice for proceeding against him for 10-11-1982, under the Contempt of Court Act, which matter shall be dealt with separately.

4. The above narration of facts make it clear that the petitioner both on factual as well as legal plane deserved the same treatment like Maqbool Hussain co-accused of the petitioner at the hands of the learned Sessions Judge, Multan, but unfortunately, he was not so treated. In view of the unlawful detention of the petitioner and also the 'rule of consistency', I have no alternative but to allow this petition. The petitioner be released subject to his furnishing bond in the sum of Rs.50,000 (Fifty thousand only) with two sureties in the like amount to the satisfaction of the A.C./Duty Magistrate, Multan.

5. Before parting with this order, I would like the Additional Registrar of this Court to send copy of this order to the learned Sessions Judge, Multan calling upon him to explain the reason for passing two inconsistent orders in the case of the petitioner and his co-accused Maqbool Hussain.

H. A./4558/L Bail allowed.

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