' Abdul Khaliq has moved this petition under section 49/ (5), Cr. P. C. For the cancellation of bail allowed to Faqir Hussain respondent in a case registered against him and four others under sections 148 and 307/149, P. P. C. Vide F. I. R. No, 373 dated 17-9-1975. The allegations are that on 17th September 1975 the respondent, his brother Muhammad Ishaq and three others armed with fire- arms, came to the house of the petitioner who was sitting on a cot near his house. Muhammad Ishaq who was armed with a rifle, fired a shot upon which Abdul Khaliq petitioner and his companions ran into the house, bolted the door from inside and went on the roof of the house for shelter. The respondent and his co-accused fired at the roof of the house and challenged Abdul Khaliq to come down. In the meantime the police reached the spot and arrested all the accused except the respondent who fled away from there.
2. The respondent applied for pre-arrest bail through Cr. Misc. No, 5525-B of 1975 which was dismissed by me on 23rd January 1976 and he was arrested on the same day. He applied for bail after arrest in the Sessions Court which was dismissed by the learned Additional Sessions Judge on 17th August 1976 on the ground that his petition for bail was dismissed by the High Court and there was no fresh ground for bail. After that, the respondent moved Cr. Misc. No, 3361-B of 1976 but the same was also dismissed by his Lordship Mr. Justice Javid Iqbal on 31st August 1976. Only eighteen days after that the Additional Sessions Judge admitted him to bail and the said order is being impugned in this petition.
3. The learned counsel for the petitioner contends that Faqir Hussain respondent was refused bail twice by this Court and his bail application was earlier dismissed by the Additional Sessions Judge on 17th August 1976, therefore, in the absence of any fresh ground there was absolutely no justification to admit the respondent to bail. It is further submitted that the respondent remained an absconder for a sufficiently long time and was guilty of petition of offence, therefore, he was not entitled to the concession of bail. The learned counsel for the respondent, however, contends that this petition is not maintainable as the petitioner was required to move the Sessions Court in the first instance for the cancellation of bail. He further submits that only ineffective firing is attributed to the respondent and the bail order is just and proper.
4. The contention of the learned counsel for the respondent that in the matter of cancellation of bail the petitioner was required to move the Sessions Court in the first instance, is without any force. On the face of it, the order of the learned Additional Sessions Judge appears to be wholly whimsical. He himself rejected the bail application of the respondent on 17th August 1976 on the ground that the respondent was declared a proclaimed offender, he was refused bail by the High Court and there was no fresh ground for bail. However, by order dated 18th September 1976 he allowed bail to the respondent mainly on the ground that the challan was submitted in the Court on 16th January 1976 but no evidence had been recorded in the case by that date. It appears that the order dated 31st August 1976 passed in Cr. Misc. No, 3361-B of 1976 was suppressed in the subsequent petition before the learned Additional Sessions Judge. While passing the order dated 17th August 1976 the learned Additional Sessions Judge must be aware that the challan had been submitted in the Court on 16th January 1976 and that no evidence had been recorded in the case, therefore, there was no fresh ground for bail available to the petitioner in the subsequent petition.
The learned Additional Sessions Judge took no notice of the fact that the respondent had been guilty of repetition of offence within a short time and had remained a proclaimed offender. I am, therefore, of the view that he has not exercised his discretion in a proper manner. Consequently.
This petition is allowed and bail allowed to Faqir Hussain respondent by the learned Additional Sessions Judge by his order dated 18th September 1976 is cancelled. He shall be taken into custody forthwith and sent to jail.