' SAJJAD ALI SHAH, C.J.---Petitioner before us named above is facing trial for offences under sections 324, 337-F(vi) and 336, P.P.C. It is alleged that at the instigation of co-accused Muhammad Rafiq, the petitioner fired from his gun at Khurshid Ahmad, who became injured.
Initially, report was filed for offence under section 324/34, P.P.C. But later on the section was changed to 337/4-F(vi) after amendment in Chapter XVI relating to offences affecting human body. The doctor has certified the injury in question as grievance in nature falling under section mentioned above under the heading of Munaqqillah liable to Daman, which may also be punished with imprisonment extending to seven years as Ta'zir. The trial Court, which is presided over by Magistrate Section 30, Rawalpindi granted bail vide order dated 3-7-1995 after hearing the parties and recorded in the order reasons including bright prospects of compromise and the efforts being made by the parties in that context.
2. Feeling aggrieved against the order of bail, the complainant filed an application for cancellation of bail, before the learned Sessions Judge, who dismissed the application vide order dated 26-9- 1995. The learned Sessions Judge, as it appears from the order passed by him, was impressed by two factors. Firstly that the offence in question is compoundable and the parties were making efforts for compromise. Secondly that after grant of bail no attempt was made to misuse the concession.
3. The complainant filed a revision application before the Bench of Lahore High Court at Rawalpindi and the learned Judge in Chamber vide order dated 20-11-1995 impugned before us in this petition has cancelled the bail. Perusal of the impugned order shows that the learned Judge of the High A Court in Chamber had called the Magistrate and asked from him as to why he had granted bail in that case. This amounts to reprimand and we do not approve such action administered by the Judges of the superior Courts. If judicial order is found not to have been passed in accordance with law, it can be set aside by the upper forum which is competent to do so. Even the learned Judge in the High Court could have set aside the order according to law, if he came to such conclusion without calling the Magistrate with a view to reprimand him.
4. It is submitted before us by the learned counsel for the petitioner that when hearing of application for cancellation of bail was fixed in the High Court at Rawalpindi, he was busy before the Supreme Court at Islamabad and the time fixed for hearing in the High Court was 12-30 p.m.
The learned counsel managed to reach the High Court at 12-30 but the application was taken up for hearing before 12-30 and the bail was cancelled without hearing the counsel for the petitioner.
The learned counsel for the petitioner has filed affidavit in support of this assertion which is on the record. There is no other affidavit filed in rebuttal of the assertion made by the counsel for the petitioner. In the circumstances, we are of the view that there is no warrant in law or legal justification for cancelling the bail of the accused without hearing his counsel who did his best to arrive in the Court for hearing at the time given for the purpose. In support of the proposition, reference can be made to the case of thilzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335.
5. In the circumstances and for the facts and reasons stated above we set aside the order passed by the High Court cancelling the bail and remand the matter to the High Court for hearing of the application for cancellation of bail before a Bench of the High Court excepting the Judge who has passed the impugned order. Resultantly, leave is granted and the petition is converted into appeal and allowed in the terms stated above.