' Khushi Muhammad complainant/petitioner lodged the F.I.R. On 4-51990 at 6-35 p.m. Alleging that at 11-00 p.m. The previous night his daughter Mst. Bushra aged 18 years had been forcibly carried away by her husband Altaf accused with whom only Nikah had taken place but not the `Rukhsati' who was armed with a rifle, Idrees respondent also armed with a rifle, Mushtaq respondent with a Sota, Nawaz respondent with a hatchet and Sultan empty handed alongwith their three women. A case was registered against them under section 365/452/336/148/149, P.P.C.
2. The bail before arrest petitions of the three women and the respondents were disposed of by Syed Irshad Hussain Abadi, Additional Sessions Judge, Sialkot vide order, dated 2-6-1990. The three lady accused were granted bail but petition of the respondents was dismissed observing 'Apparently the petitioners Musthaq, Muhammad Nawaz, Idrees and Sultan are connected, with the commission of non-bailable offence. There is nothing on the record to suggest that these petitioners have been involved in this case falsely and mala fide by the complainant or the police, and have also failed to join the investigation, so they are not entitled to the concession of bail'. The respondents were arrested on that very day and after 14 days remand, were sent to the judicial lock-up. They moved for bail after arrest on the very day of their arrest which was entertained by the Additional Sessions Judge and notice issued. He seems to have lost sight of the fact that the case at the most was to be tried by the Magistrate exercising the powers under Section 30, so bail after arrest petition in normal course should have been firstly moved in the Court of the Magistrate Section 30 and not that of Additional Sessions Judge. He granted bail to the respondents on 25-6- 1990 vide the impugned order and the operative part is "the petitioners' pre-arrest bail was rejected on 2-6-1990. They have joined the investigation and now are in judicial lock-up. Their offence does not fall within the prohibitory clause of section 497, Cr.P.C..." This is a petition for cancellation of the bail.
3. Learned counsel for the respondents tried to raise the preliminary objection that the petition should have been moved in the first instance before the Additional Sessions Judge and not in the High Court. But that is a rule of propriety. When the Additional Sessions Judge seems to have thrown all the rules of propriety to wind, there is no advantage in directing the petitioner to first move the Additional Sessions Judge. The objection is rejected.
4. As is clear from the observation of the Additional Sessions Judge in the bail before arrest order, the respondents were connected with the crime alleged, but in the order granting the bail the merits of the case were not discussed at all nor even commented upon and simply observing that the offence did not fall within the prohibitory clause of 497, Cr.P.C. The bail was granted as if every non-bailable offence must result in automatic grant of bail. It is a very wrong approach. The conduct of the Additional Sessions Judge does not seem to be smooth in the matter.
5. Since the merits of the case have not been touched upon and rather the proper forum i.e, the Court of Magistrate has been by-passed, so the to the respondents is hereby ordered to be cancelled. They, if advised, may move in the first instance the trial Magistrate who would dispose of the application, on its merits without being influenced by any observation in this order. Disposed of.
Bail cancelled.