P L D 2017 Peshawar 10

Before Rooh-ul-Amin Khan, J

MUHAMMAD MUNIR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Petition No.1426 of 2015, decided on 21st August, 2015.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss.36 & 37---National

Database and Registration Authority Ordinance (VIII of 2000), S.30---Penal Code
(XLV of 1860), Ss.419 & 420---Privacy of information, damage to information system
etc., cheating by personation and cheating and dishonestly inducing delivery of
property---Bail, refusal of---Allegation against the accused was that he created and
operated fake facebook profile in the name of complainant and uploaded her picture
without her consent---Inquiry was conducted wherein relevant record was obtained
from the Facebook Incorporation---Sufficient material had been collected against the
accused with the data from Facebook Incorporation---Accused was involved in the
offence which was against society---Reasonable grounds existed to connect the
accused with the commission of offence---Bail was declined, in circumstances.

(b) Constitution of Pakistan--

----Art. 189---Judgment of Supreme Court---Binding effect---Decision of Supreme

Court deciding a question of law or enunciating a principle of law was binding on
every organ of the State.

(c) Legal practitioner---

----Legal profession, functions, ethics and propriety---Professional duty of a legal

practitioner was that he was supposed to appear in the court when a case was called---
Failure would indicate lack of respect of counsel toward his professional duties---
Advocates were officers of the courts and they were expected to maintain the dignity
of legal profession.

Liaqat Ali Khan v. The State and 6 others PLD 2015 Pesh. 115 and Nazir Ahmed and
another v. The State and others PLD 2014 SC 241 rel.

Nemo for the Petitioner.

Abdul Latif Khan, Standing Counsel along with Miss Shagufta Amin,
Complainant.

Date of hearing: 21st August, 2015.

JUDGMENT

ROOH-UL-AMIN KHAN, J:- 'This single order shall dispose of the instant bail
application as well Bail Application No. 1446-P of 2015, whereby the petitioner
Muhammad Munir S/o Abdur Rashid seeks his release on bail in case FIR No.
11/2015, dated 18.3.2015 registered at Police Station FIA, Peshawar, under sections 36
and 37 of Electronic Transaction Ordinance 2002, sections 419, 420, P.P.C. and section
30 NADRA Act.

2. The petitioner being remained unsuccessful to get the discretionary relief of bail
from the court below has approached this court for the same relief through the above
mentioned two separate criminal miscellaneous applications filed through different
counsel, viz the former through Mr. Hidayat Ullah Afridi, Advocate while the latter is
filed on 7.8.2015 through Mr. Ghulam Nabi, Advocate. Both the applications are
supported by duly sworn affidavit to the effect that no such bail application has earlier
been filed by the petitioner before this court or august Supreme Court of Pakistan.
Since both the applications have been filed by the petitioner for grant of same relief,
therefore the latter Bail Application No. 1446-P/2015 being not maintainable as
infructuous stand dismissed. It is noted with concern that the litigants have adopted an
unprecedented routine of filing successive bail applications through different counsel,
by disclosing or without disclosing to them about the engagement of earlier counsel
and filing application on the same facts and grounds. Engaging the services of two or
more different counsel by accused for attempt to get the same relief on the same facts
and grounds is a matter which ostensibly provided fodder to an impression about an
extraneous consideration, therefore honourable the Chief Justice of this court, in
pursuance of the judgment of august Supreme Court was pleased to issue broad-
spectrum directive to the effect that in future all type of bail applications shall be
supported by duly sworn affidavit, disclosing the fact that no such bail application has
earlier been filed by the petitioner, before this court or august Supreme Court, on the
same facts and grounds. Regardless the judgment (supra) and directive of Hon'ble
Chief Justice of this court, the petitioner has filed two different applications for the
desired relief on same facts and grounds, so much so, each application is accompanied
by an affidavit showing an empathic and explicit declaration that no such petition has
earlier been filed. I must admit that I am at a loss to understand why such a pattern is
being followed by the petitioner as well his learned counsel and what can be the factual
or legal justification for adopting such a pattern. There is in fact no valid or relevant
explanation to justify the act of petitioner or his counsel; however it must be reiterated
that such an act would not be conducive to fetch any productivity in favour of
petitioner.

3. There is yet another aspect of this matter which is also quite disconcerting. On
13.8.2015, the clerk of counsel for petitioner appeared before the Deputy Registrar but
due to non-availability of the requisite record, the case was posted for further
proceeding on 19.8.2015. On the date fixed before the Deputy Registrar, none attended
the office; therefore, the case was placed before this court for disposal. Today, despite
service none is present from petitioner side which shows lack of interest of counsel for
petitioner, in pursuing the instant as well connected bail application. The professional
duty of an Advocate is that he is supposed to appear in Court when a case is called,
failing which will indicates lack of respect of counsel toward their professional duties,
which is not contributing to the proper administration of justice and is also prohibited
by the Legal Practitioner and Bar Council Act. Such behaviours of advocate provide
good cause for taking disciplinary action against him, however, without commenting
upon the conduct of the counsel for petitioner, suffice it to say that being application
for bail, it cannot be kept pending for indefinite period, consequently, the learned
Standing counsel was invited to the rostrum to assist the court.

4. Perusal of record would reveal that on complaint of Ms. Shagufta Amin, an inquiry
was conducted by Federal Investigation Agency wherein the relevant record was
obtained from the Facebook Incorporation including I.P address against the fake
facebook profile available on link www.facebook.com/profile.php. As per information
provided by Facebook Incorporation, USA the I.P address belong to I.P pool of PTCL.
On further investigation the PTCL Regulatory Affair Department provided information
that the I.P address were assigned to PTCL landline No.0995-613389 being installed in
the name of DDMA at District Coordination Office Haripur. During raid conducted by
the aforementioned agency, the petitioner was found sitting on the computer of DDMA
section of Deputy Commissioner Office, who was arrested and interrogated by the FI
Agency. During the investigation he disclosed about creating and operating the fake
facebook profile in the name of complainant and has also uploaded her personal
pictures on the above said profile without her consent. The investigation agency has
collected sufficient material coupled with the data from Facebook Incorporation USA
through Facebook Law Enforcing online request system, which fully support the
allegation of complainant. The arrest of petitioner while using the computer connected
to the landline No. of DDMA Section of DCO office, Haripur, further supplement the
involvement of petitioner in the crime against society. From the tentative assessment of
material available on record coupled with recovery of electronic devices, it is sufficient
to affirm that prima facie reasonable grounds exist to connect the accused petitioner
with the commission of a heinous offence.

5. In view of the above, the petition being devoid of merit stands dismissed.

6. Before parting with this order, I deem it appropriate to emphasize the role of
advocate in legal profession. Advocates, in addition to being professionals, are also
officers of the courts and play a vital role in the administration of justice. Accordingly,
the set of rules that governs their professional conduct arise out of the duty that they
owe the court, the client, their opponents and other advocates. An Advocate enjoys a
very high position in the society and the Courts of law as well as the general public
repose great trust in Advocates and they are expected to maintain the dignity of the
legal profession and not to betray the sacred trust reposed in them. In a recent
judgment rendered in case titled Liaqat Ali Khan versus The State and 6 others (PLD
2015 Peshawar 115), this court while laying emphasis on the canon of legal ethics held
that "the central function of the 1egal profession is to promote the administration of
justice. If the practice of law is thus a public utility of great implications and a
monopoly is statutorily granted by the nation, it obligates the lawyer to observe
scrupulously and with extreme conscientiousness those norms which make him worthy
of the confidence of the community in him as a vehicle of justice-social justice".
7. The menace of filing successive applications for bail by the petitioner is uprising day
by day and rapidly turning the values and norms of legal ethics, code of conduct and
etiquettes of legal profession. In such an eventuality, only the members of the lawyer
fraternity are expected to come forward for curbing the imperil and threat to legal
profession, because the Advocate is under laden duty to maintain the dignity and high
standard of the legal profession as well as his own dignity as a Member of the Legal
fraternity, both within and outside the Court. It is also estimated that the lawyers shall
deflect the course of filing successive and simultaneous bail applications on same fact
and ground not only to save and maintain the long established practice of this Court,
but also because such a course shall merit of avoiding the possibility of two
contradictory orders in the same case by the High Court. I have fearful expectation and
virtually having an apprehension, rather it is pinching that such a practice shall tends to
encourage malpractice by the accused persons and to bring the judicial system into
disrepute, because in the event of a conflicting order being given by another single
bench in a subsequent application, an impression, though false, may be created that the
second order was based on extraneous considerations.

8. 1 do not want to lay more stress on the duties of members of legal fraternity except
to point out to them the leading judgments handed down by the august Supreme Court
in case titled Nazir Ahmed and another v. The State and others (PLD 2014 Supreme
Court 241) wherein the principles of propriety and practice in connection of successive
bail application are enunciated. Needless to say that any decision of the Supreme
Court, shall to the extent that it decides a question of law or is based upon or
enunciates a principle of law, is binding on every organ of the state and all the Courts
in Pakistan and all judicial authorities throughout Pakistan shall act in aid of the
Supreme Court.

9. The Office shall communicate the copy of this order to the Secretary Khyber
Pakhtunkhwa Bar Council for placing it before the General Body of the Council and all
presidents and General Secretaries of High Court/Circuit Benches, District and Tehsil
Bar associations for the purpose to ensure the strict compliance of principle enunciated
in the judgment of august Supreme Court (PLD 2014 Supreme Court 241) and
directive of honorable the Chief Justice of Peshawar High Court.

ZC/360/P Bail refused.

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