AMIR HANI MUSLIM, J.-- This Criminal Miscellaneous Application has been preferred against the order dated 12.8.2004 by which the learned Sessions Judge, Sanghar, has rejected the pre-arrest bail application of the applicants and remanded them to the judicial custody.
2. The learned counsel for the applications submits that while rejecting the bail application the learned District and Sessions Judge, Sanghar had exceeded his jurisdiction by remanding the applicants to judicial custody though the case was triable by the Judicial Magistrate besides no request for the custody of the applicants was made by the police. According to the learned counsel the police did not submit Challan on 12.8.2004 when the learned Sessions Judge, Sanghar, passed the impugned order. According to challan before the Trial Court on 25.8.2004 much after the rejection of the bail application by the learned Sessions Judge, Sanghar.
3. From the tenor of the order it appears that the learned District and Sessions Judge, Sanghar who has rejected the bail application directed the applicants be taken into custody and remanded them to District Jail Sanghar, was influenced by extraneous factors. The portion of the ing the applicants to the judicial custody falls outside the jurisdiction of then learned District and Sessions Judge, Sanghar. The Courts, in law, while rejecting bail applications are not competent to place any other restraint upon such accused and order of such nature are always deprecated by the superior Courts.
4. The Honourable Supreme Court in the cases of Jamaluddin \/s. The State (1985 SCM R 1949) and Sad[q Ali Vs. The State reported in (PLD 1966 SC 589) has held that in the matters of pre-arrest bail, where the accused are not in custody and admitted to interim bail, the Courts may reject and or cancel their bail application but such orders should not entail consequences that the accused be given into police custody without there being request in that behalf by the police itself. Their Lordships have further held in the above referred cases that proper order to passing such circumstances by the Courts would be to cancel or reject ad interim bail and leave the accused to be dealt with by police as they thought fit. But an ing such accused to custody vitiated by lack of jurisdiction, as the Courts would not be competent to place any restraint upon such accused on refusal or cancellation of his bail.
5. Admittedly during the hearing of the bail application before the Sessions Judge, Sanghar there was no request from police for the custody of the applicants and, therefore, the Sessions Judge, Sanghar was in error in ordering the applicants to be taken into custody and remanding them to District Jail, Sanghar, lt appears that the Sessions Judge, Sanghar while passing the impugned order of remand, was influenced by extraneous factors by observing in the impugned order that "most of the Zamindars in collusion with the staff of Irrigation Department were habitual of taking more water than their shares with the result the Zamindars in the tale of water course were deprived of their that due share of water, which practice should be discouraged." The learned Sessions Judge, Sanghar has further observed in the impugned order that none is above the law.
The law is not for those who are week and poor but, it is for everybody. The supremacy of law must prevail." After observing all this, the Sessions Judge lost sight that he was also required to pass orders in accordance with law. The Judicial officer, in law, should not influence their mind by extraneous factors and confine themselves to the facts available on record. The learned Sessions Judge while passing the impugned order had traveled beyond the record in incorporating his observations in the impugned order and remanded the applicants to the judicial custody. Such an approach of the learned Sessions Judge is dangerous and would shake the confidence, which a common man has for judicial institutions. The Judicial officers should be more cautious and careful when they pass orders depriving liberty of a person.
6. The learned counsel for the applicants has made an interlocutory application in these proceedings that the applicant be enlarged on bail, ln the applications, he has pleaded that the order of remand of the applicants passed by the learned Sessions Judge while rejecting their bail application was without jurisdiction. He has further urged that on account of the impugned order, the applicants were restrained from approaching this Court to avail remedy of pre-arrest bail and instead they were remanded to judicial custody, which the law does not permit.
7. The arguments advanced by the learned counsel appeal to reasons. The applicants are charged under Section 430 PPC, which is bailable offence and Sections 61 and 62 of the Sindh Irrigation Act, 1879, which is non-bailable but the punishment provided thereunder is three years. Since the applicants are charged with one of the non-bailable offences and the maximum punishment provided therein is three years, the applicants are entitled to bail. The learned State counsel also concedes to the grant of bail to the applicants.
8. This application for grant of bail to the applicants is allowed subject to their furnishing surety in the sum of Rs. 50,000/- each with PR bond in the like amount to I the satisfaction of the Trial Court.
9. The learned counsel for the applicants does not press the quashment application and states that it has served its purpose. The quashment application is dismissed as not pressed. Copy of this order be communicated to the Sessions Judge, Sanghar who is warned to be careful in future while passing judicial orders be also communicated to the Registrar of this Court to place this order on the personal file of the Sessions Judge, Sanghar. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.