' Arguments heard.
2. I have gone through the record placed on file as well as the record which has been produced on behalf of Superintendent Jail Mardan, (respondent No,2), by Mr. Hashmatullah, Assistant Superintendent Jail, Mardan, as directed by His Lordship Mr. Justice Sardar Muhammad Raza, Vide: his order, dated 25-5-1999.
3. The available record would show that the petitioner stands charged for having committed an offence punishable under section 394/402, P.P. C . Vide: F.I.R. No,1591, registered at Police Station, R.A.
Bazar, Rawalpindi on 15-4-1999. He was accordingly arrested by Mardan Police which produced him before Civil Judge/Judicial Magistrate, Mardan (Miss Amreena) who directed that the petitioner be kept in Jail and produced before her on 12-5-1999.
4. It is regretfully noted that there is nothing on the record to show as to when, by whom and under whose orders he was arrested.
5. There is no record to show as to which Court, at Rawalpindi, had issued warrants of arrest against him. Similarly, no Police Officer, from Rawalpindi has ever contacted the Mardan Police with the request to arrest the petitioner.
6. The only document available with the Jail Authorities and produced by the Assistant Superintendent Jail would show that the petitioner was sent to judicial lock-up on 26-4-1999 by the Civil Judge/Judicial Magistrate, Mardan with the directions that he be produced before her on 1-5- 1999.
7. However, when the petitioner was produced before her, Civil Judge/Judicial Magistrate, on 12-5- 1999, she refused to give extension to keep him in Jail, as stated by the Assistant Superintendent Jail, Mardan today in the Court. He further stated that the Civil Judge/Judicial Magistrate, also refused to give any other order as is apparent from the Jail warrants. He further submitted that the Jail Authorities had no other option but to take the petitioner back to the Jail and keep him there.
He admitted that the petitioner was being kept in the Jail without any authority i,e, unlawfully/illegally. The learned counsel for the petitioner vehemently contended that in the circumstances the petitioner is being kept behind the bars without any proper "remand order" from any Court of competent jurisdiction and that his confinement in the Jail is illegal/unlawful.
8. According to the learned counsel for the petitioner, the petitioner applied, for interim bail, to the Sessions Judge, Mardan (Malik Ghulam Mohyddin) under section 86 (Provision) but the Sessions Judge, without applying his mind, refused to release him on bail Vide: his order, dated 11-5-1999 recorded in B.A. No,404 of 1999 (The State v. Riaz ur Rehman). He further stated that the Sessions Judge, in the concluding para of his impugned order, however, observed:-- 'before parting with the instant order, it is observed that the local police of Mardan should immediately pass an information to the Police concerned for transportation of accused to their jurisdiction in accordance with law. File to R.R. After completion. Dated 11-5-1999 , (Sd .)
' Announced. Malik Ghulam Mohyuddin Sessions Judge, Mardan ' Aggrieved by the said order the petitioner has approached this Court for the redress of his grievances.
9. It is apparent from the record available in the Court that no effort was ever made either by the Superintendent of Jail or by the Superintendent of Police, Mardan, to contact the Senior Superintendent of Police, Rawalpindi, to get the petitioner shifted to Rawalpindi as directed by the Sessions Judge, Mardan, Vide: his order mentioned above. On the other hand, the Rawalpindi Police; till date, has not approached the Mardan Police/Jail authorities to get the petitioner transferred to Rawalpindi.
10. In the circumstances the petitioner cannot be allowed to remain it confinement.
11. This bail petition is accepted and the petitioner is admitted to interim/transitory bail. He shall be released forthwith, provided, he furnishes bail bonds in the sum of Rs, 1,00,000 (Rs, One lac only) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar/ Deputy Registrar of this Court. In this respect I am supported by a case, Ajmal Badshah v. The State, reported as 1993 P.Cr.L.J. 738, decided by His Lordship Mr. Justice Faz al Elahi Khan, the then Chief Justice, Peshawar High Court, Peshawar.
12. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons and are men of means having sufficient property in their names and that they hail from the settled areas of District Mardan. Attested copy of their property documents/identity cards shall be obtained placed on file for record.
13. The Additional Registrar/Deputy Registrar is further directed to obtain the bail bonds in duplicate. One of the same shall be forwarded to the Sessions Judge, Rawalpindi for onward transmission to the concerned Court which might have issued warrants of arrest.
14. The petitioner-accused is directed to appear before the Sessions Judge, Rawalpindi on 1-7-1999 positively for further orders failing which the interim/transitory to him shall stand recalled.
15. The Civil Judge/Judicial Magistrate, (Miss Ambreena) be asked to furnish her comments as to why did she refuse to extend the judicial remand and that too without giving anything in writing to the Jail authorities.
16. Similarly, the Sessions Judge, be asked to furnish comments as to why he did not extend the benefit of transitory bail to the petitioner to appear before the concerned Court at Rawalpindi with the result that he remained confined in the Jail illegally/unlawfully. The Registrar shall make sure that their comments are received within 15 days, to be placed before me.