The petitioner is charged for an offence under Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It is alleged that on 14-5-1985 he entered into the house of Gul Muhammad complainant and committed Zina with his were Mst. Bivi. He was surprised by the complainant who caught hold of him but he managed to escape after giving head pushes to him.
2. The petitioner applied for pre-arrest bail which was declined to him by Mr. Abdul Hameed Khatak, Additional Sessions Judge, on 8-6-1985. Suppressing this fact, he moved post-arrest bail petition which came up for hearing before Mehr Muhammad Siddiq Girwah, Additional Session, Judge, Sargodha, who allowed him bail on 10-8-1985.
3. Feeling aggrieved Gul Muhammad complainant moved an application for the cancellation of bail of the petitioner which was entertained and disposed of by Mr. Abdul Hameed Khan, Additional Sessions Judge, Sargodha who vide his order dated 31-8-1985 cancelled the petitioner's bail, allowed to him by the aforementioned Additional Sessions Judge, Sargodha on 10-8-1985. Instead of surrendering to custody the petitioner came to this Court with a plea for pre-arrest bail. He was admitted to interim bail because it was urged before me that he had been found innocent by the police which fact had not been duly considered by Mr. Khatak while cancelling his bail.
4. A report was called from Mr. Khatak, Additional Sessions Judge to explain under what provision of law he had entertained and disposed of application for cancellation of bail granted by another Court of equal jurisdiction.
The learned Additional Sessions Judge has submitted a detailed report. According to him it was incumbent upon the petitioner and his counsel to have mentioned in the subsequent bail application the factum of rejection of anticipatory bail petition by his Court but it was suppressed as a result of which the learned Sessions Judge marked the application for disposal to the Court of Mr. Siddiq Girwah, A.S.J. It is further stated by him that the learned Additional Sessions Judge who had granted the bail was on summer vacation while he himself was functioning as a duty Sessions Judge and exercising the powers under section 17(4), Cr.P.C. He kept the application for cancellation of the petitioner's bail on his file and disposed of the same considering it to be a matter of urgent nature.
No doubt the rule of propriety and harmony required that the petitioner and his counsel should have mentioned in the subsequent bail petition the factum of its having been earlier dismissed by Mr. Khatak but the propriety also demanded that Mr. Khatak should have A avoided to dispose of the application and referred it to the same Additional Sessions Judge who would have been back from vacation after 5/6 days. The haste shown by Mr. Khatak in disposing of the application for cancellation of bail is not approved.
6. However, keeping in view the fact that the petitioner did not surrender after his bail had been cancelled by Mr. Khatak and the presence of injuries on his person as well as on the complainant and Mst. Bivi and in the absence of a clear finding by the police about his false implication I do not consider him entitled to the concession of bail and accordingly recall his interim bail and dismiss his application. He may apply again for bail before the trial Court after some evidence is recorded and the matter shall be decided without any bias.