' F.I.R. No,240 of 1997, dated 3-8-1997 was registered at Police Station, Sahiwal District Sargodha under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the statement of Ghulam Yasin wherein he allege4 that on the night between 29/30-7-1997 when he returned home at 10 p.m. He found his daughter Mst. Rasulan Bibi (respondent No,2) committing Zina with Muhammad Nawaz. When he surprised them, they both ran away. At the behest of Muhammad Nawaz, Mst. Rasulan Bibi also lodged a case for dissolution of marriage.
2. Pursuant to this F.I.R. Both-Muhammad Nawaz and Mst. Rasulan Bibi were arraigned and the challan was sent up against both of them to the Sessions Court on 5-9-1997. The learned Sessions Judge referred the case for trial to Mr. Muhammad Aslam, learned Additional Sessions Judge on 12- 9-1997, who summoned the accused on the same day and framed the charge on 19-11-1997 and fixed the case for evidence. However, as the complainant and Khuda Dad P.W. Did not turn up to give evidence despite service, the learned trial Judge had to issue their bailable warrants for 17-3- 1998.
3. While the matter was pending investigation Mst. Rasulan Bibi (respondent No,2) had applied for her bail before arrest. The same was marked Mr. Abdul Qayyum Raja, learned Additional Sessions Judge, who declined the same. She applied for a bail after arrest, which was also dismissed by Mr. Abdul Qayyum Raja, Additional Sessions Judge.
4. After the submission of the challan and entrustment of case to Mr. Muhammad Aslam Chaudhry, Additional Sessions Judge, respondent No,2 again moved bail application on 21-9-1997 disclosing, of course, that earlier her bail had been rejected by Mr. Abdul Qayyum Raja, Additional Sessions Judge. The same was marked by the learned Sessions Judge to Mr. Muhammad Aslam, Additional Sessions Judge as he was seized of the trial. Similarly Muhammad Nawaz (respondent No,1) also moved for post-arrest bail after submission of the challan. This was also marked to the learned trial Court (Mr. Muhammad Aslam, Additional Sessions Judge). Bail application of both the respondents were clubbed together for disposal by the learned trial Judge.
5. The learned counsel for the complainant raised objection before the learned trial Judge that as bail application of Mst. Rasulan Bibi (respondent No,2) had been earlier dismissed by Mr. Abdul Qayyum Raja, Additional Sessions Judge in view of the law laid down in Zubair's case, PLD 1986 SC 173, both the petitions merit to be transferred to the Court of Mr. Abdul Qayyum' Raja, Additional Sessions Judge for disposal. The learned trial Judge (Mr. Muhammad Aslam Chaudhry), however, declined to entertain this objection on the ground that Mr. Abdul Qayyum Raja, Additional Sessions Judge had dealt \ with the bail application of one of the accused (respondent No,2) before filing of \ the challan. Now that the case had been entrusted to him for trial he had the jurisdiction to entertain the bail applications of the accused and dispose them of in accordance with law. Mr. Muhammad Aslam, Additional Sessions Judge learned the trial Judge granted bail to both the respondents vide order, dated 13-11-1997.
6. The petition for cancellation of the bail of respondents was admitted only to consider the question whether the impugned order was hit by the dictum laid down in Zubair's case (supra).
7. I have heard both the parties at some length. It is my considered view that Zubair's case has no application to the aforesaid facts. Once Mr. Muhammad Aslam, Additional Sessions Judge had taken cognizance of the case then all the applications pending trial were to be dealt with by him.
The principle of accused following the Judge for the purpose of bail as laid down in Zubair's case has a bearing only to High Court and ceases to apply once the case is entrusted for trial at the Sessions level. After the learned Additional Sessions Judge (Ch. Muhammad Aslam) assumed cognizance of this case, the rigours of Zubair's case were no longer attracted. If these principles were pressed even after assumption of the cognizance of a case; it would present an anomalous situation. An accused person facing trial before one Court would be required to seek bail pending trial from another Court which during investigation might have attended to his bail application or that of his co-accused at one stage. It would be relevant to advert to a circular of this Court No,10174/MIT/HC/Cr./ Misc.383-CB/94, dated 4-7-1997 wherein it has been directed that:-- "Rule in Zubair's case should be applied as far as possible. However, after commencement of trial, all bail applications arising out of the case should be entrusted to the trial Court."
' There is as such nothing exceptionable about the impugned bail granting order in favour of the respondents. Dismissed.