This is a petition for cancellation of bail by the petitioner/complainant granted to respondent No.1 by Ch. Ihsan Ahmad, learned Additional Sessions Judge, Faisalabad vide his order, dated 25-9-1991, in case F.I.R. Ivo.223, dated 30-6-1991 under section 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station Factory Area, Faisalabad.
2. Briefly the allegation against respondent No.1 as narrated in the F.I.R. Is that he abducted Mst.
Rashida Bibi, wife of the complainant and committed Zina with her.
3. The learned counsel for the petitioner/complainant has taken up a legal objection that the bail application of co-accused of respondent No.1 Mst. Rashida Bibi was heard and decided on merit by Mr. Abdul Ghaffar Khan, learned Additional Sessions Judge, Faisalabad on 15-7-1991 and respondent No.1 in spite of this fact by suppressing the true facts procured the impugned order dated 25-9-1991 from Ch. Ihsan Ahmad, learned Additional Sessions Judge, Faisalabad, hence bail granting order, is contrary to the dictum of their Lordships laid down in PLD 19.86 SC 183. In view of the aforesaid case, this bail petition should have been heard by the same learned Judge who dismissed the bail petition of Mst. Rashida Bibi, co-accused of respondent No.1. Thereafter, the petitioner/ complainant moved the Court for cancellation of his bail vide petition dated 30-9-1991 in which specifically this legal objection was taken; that in the presence of the order referred to above passed by Rana Abdul Ghaffar Khan learned Additional Sessions Judge, who passed the impugned order on the bail application of respondent No.1, but Ch. Ihsan Ahmad, learned Additional Sessions Judge ignored this legal hurdle and passed the contradictory order which is being assailed in this petition. 1n the first order, dated 15-7-1991, passed by the learned Additional Sessions Judge, Faisalabad (Rana Abdul Ghaffar Khan) it was observed that in the presence of the statement of Ghulam Shabbir dated 1-7-1991, there is some evidence against Mst. Rashida Bibi and Sultan Mahmood present respondent, whereas in the impugned order by which the bail was granted by the learned Additional Sessions Judge, Faisalabad (Ch. Ihsan Ahmad); he observed that there is no evidence to prove the abduction and Zina by respondent No.1 Sultan Mahmood ignoring the observation and the evidence relied upon by Rana Abdul Ghaffar Khan, learned Additional Sessions Judge, Faisalabad in the earlier bail application which has resulted into conflicting decisions by the Courts below. The learned counsel for the petitioner/complainant submitted that the learned Additional Sessions Judge even after this fact was brought to his notice, did not cancel the bail of respondent No.1 vide his order, dated 1-10-1991 holding that respondent No. Was allowed bail on merits and he has not adverted to the legal objection raised by the learned counsel for the complainant. In view of this situation, the learned counsel for the complainant has contended that this order is against the decision of this honourable Court as laid down in 1987 P Cr. L J 852.
The learned counsel also claimed the cancellation of bail on merits, that in view of the statement referred above, there is prima facie case against respondent No.1, hence on facts even respondent No.1 is not entitled to the concession of bail.
The learned counsel for the State has supported this petition.
4. The learned counsel for the respondent No.1 has vehemently argued, that the case is fixed for evidence in this month, no useful purpose would be served by cancelling the bail of respondent No.1 on this legal objection. He also urged no case for the cancellation of bail of respondent No.1 is made out on merits, as there is no direct evidence available on the record, to substantiate, that respondent No.1 and Mst. Rashida Bibi are committing Zina or living in adultery, or fornication.
5. After hearing the learned counsel for the parties and perusing the record, I find, there is lot of force in this legal objection, the subsequent bail petition should have been decided by the same learned Additional Sessions Judge, who had earlier decided the bail petition of Mst. Rashida co- accused of respondent No.1 if that learned Judge was available a; that time. As the learned Additional Sessions Judge, Faisalabad (Rana Abdul Ghaffar Khan) had earlier dismissed the bail petition, normally the bail of any other co---accused m this case should have been placed before the same learned Judge if he was available at that time. This legal objection was raised before Ch. Ihsan Ahmad learned Additional Sessions Judge, Faisalabad that bail application of respondent No.1 be sent to Rana Abdul Ghaffar Khan, learned Additional Sessions Judge, Faisalabad for disposal but in spite of that legal objection Ch. Ihsan Ahmad, learned Additional Sessions Judge, Faisalabad himself decided the case without transferring it to the Court of Rana Abdul Ghaffar Khan, learned Additional Sessions Judge, Faisalabad, hence bail granting order is contrary to the law laid down by the august Supreme Court of Pakistan as well as by this Court, and the bail granting order is liable to be set aside on this legal ground alone. In view of the abovementioned legal objection, the bail granting order is contrary to law, hence it is set aside.
The bail of respondent No.1 is cancelled, he is directed to surrender his bail bond and he shall be taken into custody and sent to jail as under trial prisoner.
This order would not prevent Rana Abdul Ghaffar Khan, learned Additional Sessions Judge, Faisalabad to pass appropriate order on merits, after the arrest of respondent No.1, if another bail petition is- moved before him.
N.H.Q./M-330/L 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.