The facts leading to this application for issuing direction of the nature of habeas corpus briefly are that on 23-4-1985, a case under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 was registered at Police Station Dheranwala on the report of Pathana wherein he alleged that Nazar Hussain and others had taken away 41is were Mst. Kalsoom with intent that she may have illicit intercourse with Nazar Hussain who had already developed illicit relations with her.
In the course of investigation, it was found that Mst. Kalsoom wad living in adultery with Nazar Hussain with her own consent, so she was arrested as an accused. She moved application for bail which was accepted by the learned Sessions Judge on 9- 6-1985. The learned Sessions Judge however imposed condition that the surety would be a person who is related to her within prohibited degree. On the same day Soobey Khan executed surety bond wherein he stated:- The learned Sessions Judge attested and accepted this bond. Since at that time, Mst. Kalsoom was in the custody of police, the release order was sent to the Incharge Police lock up Noshera Jadid.
Before the ROBKAR could be received by the S.H.O., Noshera Jadid, Mst. Kalsoom was sent to New Central Jail, Bahawalpur so she could not be released. In the meantime, Muhammad Boota, the brother of Mst. Kalsoom moved application for the cancellation of bond on the ground that Soobey Khan surety was a quite stranger and as such could not have executed the bond. On this, learned Sessions Judge passed following order:- hence this petition.
2. Since after the attestation of the bond and more particularly issuance of the release order, dated 9-6-1985 it was not desirable to keep her in the jail, so with the consent of the learned counsel for the parties and of the petitioner as well, she was transferred to Dar-ul-Aman vide order, dated 18- 6-1985.
3. The learned counsel for the petitioner contended that since after the attestation of the bond executed by Soobey Khan, the learned Sessions Judge had no authority to withhold release order with prior notice to the petitioner, therefore, the detention of the petitioner was quite illegal.
Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has supported the order, dated 10-6-1985 on the ground that the bond executed by Soobey Khan was got accepted through misrepresentation, therefore, the learned Sessions Judge was quite competent to withhold the release order of Mst. Kalsoom petitioner.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I feel inclined to agree with the learned counsel for the petitioner find that on 9-6-1985, the learned Sessions Judge had not only accepted the bond executed by Spobey Khan but also had issued order for the release of Mst. Kalsoom petitioner. On the next day i.e. 10-6-1985, on the application of the brother of the petitioner, he withheld the release order of Mst. Kalsoom without giving her or Soobey Khan any opportunity of being heard. Under the law, as soon as the bail bond is accepted by the Court, the accused shall A be released from the jail as a matter of right, therefore, principle of natural justice did require show-cause notice to the petitioner before passing any order against her interest or affecting her liberty. It is by now well-settled that failure to comply with the principle of natural justice renders the acts/orders void. Ab initio. The order. Dated 10-6-1985 passed without issuing show-cause notice to her is not only illegal but also without jurisdiction, arbitrary and of no legal effect. Furthermore there is no provision in the Criminal Procedure Code authorising the Court to withhold the release order after the acceptance of bond. The relevant provisions of law may be reproduced advantageously:- "Section 500. (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer-in-charge of the jail, and such officer on receipt of the order shall release him.
(2)Nothing in this section 496 or section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
Section 501. If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties and, on his failing so to do, may commit him to jail."
From the plain reading of the provisions of law reproduced above, it is very much obvious that the learned Sessions Judge could not have refused to release her vide order, dated 10-6-1985, and in any case he could not keep her .In jail without directing that she be brought before him and affording her opportunity to produce proper surety.
For what bas been stated above, the detention of Mst. Kalsoom in the jail after the attestation of the bond was illegal. Since she is no 18 more willing to stay in Darul Aman, she is set at liberty.
S.A.Detenu set at liberty.