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Criminal Miscellaneous No.404/B of 1985, decided on 6th April, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 380/411/420/468/471‑‑First bail application rejected by one Additional Sessions Judge‑‑Second bail application coming up for hearing before another Additional Sessions Judge who granted bail to accused‑‑First application having been disposed of by particular Judge, practice of placing of second application before another Judge, held, was highly objectionable‑‑Held further, once a matter is dealt with by a particular Judge, second application must also be placed before same Judge and even if first Judge was away, matter should have been either kept pending or dealt with by Sessions Judge himself after clarifying position.‑‑[Practice and procedure

‑‑S. 497(5)‑‑Cancellation of bail‑‑Bail before arrest refused by one Additional Sessions Judge but later granted by another Additional Sessions Judge although he was told by complainant party about pendency of transfer application before District Judge‑‑Allegation against accused being admittedly that of forging Nikahnama‑‑Accused, held, should not be penalized for carelessness and fault of Additional Sessions Judge‑‑ Sending accused to prison not found to be in interest of justice‑ Cancellation of bail declined in circumstances.

‑‑‑Ss. 497(5) & 526‑‑Additional Sessions Judge disposing of bail application despite fact of pendency of transfer application regarding same matter before Sessions Judge‑‑Such things though appearing to be of minor type, held, have far‑reaching effect and some time reflect upon integrity of Presiding Officer.

Masud Mirza for Petitioner.

Mehr Ghulam Ali Mubashir for Respondents Nos. 1 to 3.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 6th April, 1985.

Faqir Muhammad son of Ali Hassan, resident of Mauza Dodah, lodged a report at Police Station Midh Ranjha, District Sargodha, regarding the abduction of his daughter Razia as well as theft of certain household articles.

2. Accordingly, a case under section 10/11 of offence of Zina (Enforcement of Hudood) Ordinance 1979, and section 380, P.P.C. was registered against Khadim Hussain and others on 3‑8‑1984.

3. During the investigation of the said case, respondents 1 to 3 were challaned under sections 420/468, 471 380 and 411, P.P.C. They applied for bail before arrest. Zia‑ur‑Rahman, Additional Sessions Judge, Sargodha dismissed the application. The respondents thereafter applied for bail before the Illaqa Magistrate, who granted the same. When it was brought to the notice of the Magistrate that the respondents were involved in the offence under the Hudood Ordinance, he cancelled the bail on 22‑1‑1985.

3‑A. After the cancellation of their bail, the respondents did not surrender. They moved another application for bail before the Sessions Judge. This time the bail application came up before another Additional Sessions Judge, Muhammad Siddique Garwah. He granted interim bail to the respondents by order, dated 23‑1‑1985. The case was adjourned to 31‑1‑1985.

4. On 30‑1‑1985, Faqir Muhammad moved a transfer application before the Sessions Judge, Sargodha, who sent for the record.

5. On 31‑1‑1985, according to the petitioner, he informed the Additional Sessions Judge with regard to the order passed by the Sessions Judge. In spite of that the Additional Sessions Judge, Muhammad Siddique Garwah, confirmed the bail of the respondents.

6. This application has been moved by the complainant, Faqir Muhammad. He requests that the bail allowed to respondents 1 to 3 be cancelled.

7. The learned counsel appearing on behalf of the petitioner argued that the previous bail application having been rejected by Zia‑ur‑Rahman Additional Sessions Judge, the second application should have also been placed before him and that Muhammad Siddique Garwah should not have dealt with the application. According to the learned counsel, the respondents maneouvred to obtain order by practising fraud on the Court. They were fugitive when they were allowed bail by the Additional Sessions Judge. It is further submitted that the record having been called for by the Sessions Judge, the Additional Sessions Judge should have stayed the proceedings.

8. Notice was issued in this application. Counsel appearing on behalf of the State did not support the counsel for the petitioner whereas counsel for the respondents argued that the matter was placed before Muhammad Siddique Garwah as Zia‑ur‑Rahman had proceeded on Shariah course. Learned counsel also argued the case on merits and submitted that the respondents were only witnesses to Nikahnama, alleged to have been forged.

9. Mr. Justice Sardar Muhammad Dogar by his order dated 19‑2‑1985 called for parawise comments and report from the Additional Sessions Judge, Muhammad Siddique Garwah. I have gone through that. According to the Additional Sessions Judge, he was not aware of the transfer application. He came to know of this after the impugned order had been passed.

10. This is not first time that it has come to the notice of this Court that first application having been dealt with by a particular Judge, the second application is placed before another Judge. This practice is highly objectionable. There are number of decisions on this point by this Court as well as by the Supreme Court of Pakistan that once a matter is dealt with by a particular Judge the second application must also be placed before the same Judge.

11. Admittedly, Zia‑ur‑Rahman had rejected the application of the respondents. The second application should have been placed before him. In case he was away or out, of station, the matter should have either been pending or the Sessions Judge should have himself dealt with it clarifying that as the Judge who dealt with the first application was away, he had kept the second application on his own file.

12. I am not prepared to believe that the Additional Sessions Judge was not aware of the order passed by the Sessions Judge on the transfer application. The petitioner has placed on record the affidavit of his counsel to the effect that the petitioner informed the Additional Sessions Judge within time that the matter had been brought to the notice of the Sessions Judge by way of a transfer application. The Additional Sessions Judge was almost next door to the Sessions Judge. He could have verified from the Court of the Sessions Judge.

13. These things may appear to be of 'very minor type but they have a far‑reaching effect. Sometime, they reflect upon the integrity of the Presiding Officer.

14. The fault in this case is of the Additional Sessions Judge and I am not going to penalize the respondents for his carelessness.

15. The allegation against the respondents is admittedly that of forging Nikahnama. I do not think now that it is in the interest of justice to send the respondents to prison. The application is, therefore dismissed.

S.A Application dismissed

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