' This order will dispose of Criminal Miscellaneous Petitions No.806, 807 and 808 of 1987, as all these applications arise out of the same F.I.R. These applications have been moved by the State for cancellation of bail granted to the respondents Yusaf Khan, Mst. Tauheed and Hayat accused in a case registered vide F.I.R. No.14 dated 10-7-1987 of Levy Post Allah, Dhand Dheri (Malakand Agency), by the learned Sessions Judge, Malakand (Bathela) vide his order dated 26-8-1987.
2. Mian Muhammad Ajmal, the learned Additional Advocate-General appearing for the State, contended that the order of the learned Sessions Judge is misconceived inasmuch as his examination of the material available to him exceeded the limits of tentative consideration for the purpose of bail and such minute and exhaustive exercise as he has taken in passing the impugned order, has in turn certainly prejudiced the case of the prosecution. He contended that the accused are charged with an offence falling under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 entailing a sentence of imprisonment for ten years. He further contended that the learned lower Court was wrong in holding that the prosecution story has taken a new turn.
He submitted that in fact the prosecution is consistent in its version while the respondants, present a different story, which is yet to stand the test of a judicial trial. He further submitted that the accused are charged with an offence which falls within the prohibitory clause of section 497, Cr.P.C.
He finally maintained that the finding of the learned Sessions Judge regarding the question of final enquiry is not in consonance with law as enunciated by the superior Courts and hence is liable to be set aside. Reliance is placed on a case Muhammad Sadiq v. Sadiq and others reported in PLD 1985 SC 182.
3. On the other hand, Haji Muhammad Zahir Shah, learned counsel for the respondents contended that a different version has been put up by the accused in the evidence particularly based on an application made by Mst. Tauheed wherein although she admitted to have been raped but absolved the two respondents of the same. Hence the case of the accused is arguable.
4. I have given serious consideration to the matter before me. I find force in the submissions made by the learned Additional Advocate-General with particular reference to the impugned order of the learned Sessions Judge. I tend to agree with the learned counsel for the State that the learned lower Court should not have gone so minutley and exhaustively into assessing the evidence for and against the prosecution, lest it prejudices a fair trial. Let it be borne in mind that at the stage of deciding the question of bail, it is not an elaborate but a tentative sifting of the material available on the record which needs to be resorted to. In the instant case a detailed order passed by the learned Sessions Judge is certainly not in accord with this principle.
5. On the point of further enquiry the lower Courts are bound to follow the dictum of superior Courts which is more than clear in the case relied upon by the learned counsel for the State, in that bail under section 497(2), Cr.P.C. Can be granted to accused as of right if the Officer Incharge of Police Station or Court taking cognizance of the matter comes to a definite conclusion, on consideration of entire material, that there are no reasonable grounds for believing that accused has committed a non-bailable offence, without which he cannot be released on bail on the ground of further enquiry. The learned trial Court, therefore, has certainly erred in law by construing the term "further enquiry" occurring in subsection (2) of section 497, Cr.P.C.
6. I have also perused the record of the case with considerable degree of care and find that whereas on the material available, the concession of bail granted to accused Yusuf Khan and Hayat was uncalled for, the order granting bail to Mst. Tauheed cannot be held as exceptional in view of first proviso to section 497(1), Cr.P.C.
7. In the result I accept the application of State against Yusaf Khan and Hayat, recall their bail and direct that they shall be taken into custody. In the case of Mst. Tauheed, however, I reject the application on the ground mentioned above.
8. Office is directed to make the record of this case reach the trial Court within a week positively and the learned Magistrate, who is to try this case, is directed to conclude this case within three months (from the date of receipt of the files, under monthly report to this Court of the progress of the case.