1984 P Cr (PLP)

Ss. 497, 498 & 190 (3)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11-Penal Code (XLV of 1860), Ss. 323 & 354-Bail-Additional Sessions Judge ordering arrest of accused before taking cognizance under S. 190 (3)-Criminal revision challenging such order already admitted for hearing-Bail granted. Mian Qurban Sadiq lkram for Petitioner. M. Iqbal for the State. This is an application for bail on behalf of Karam Hussain petitioner in a case F. I. R. No. 248,/82 dated 26th November, 1981, registered at P. S. Bhakkar. The case was originally registered under section 354, P. P. C. The accused was tried by the Magistrate 1st Class who vide his order dated Std May, 1982 convicted the petitioner under section 354, 323, P. P. C. and sentenced him to 6 months' R. I. The petitioner filed an appeal which was entrusted to Mr. Sabah Mohayyuddin, Addl. Sessions Judge, Mianwali. The petitioner was allowed bail by the appellate Court. After hearing the appeal, the learned Additional Sessions Judge set aside - the order of conviction with the observation that the offence committed by the petitioner was prima facie punishable under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and remanded the case to the Illaqa Magistrate with the direction to send up the case under section 190 (3), Cr. P. C. It is remarkable while remanding the case he got the petitioner arrested in the Court Room and sent him to jail.

2. Learned counsel for the petitioner submitted that after having set side, the conviction the learned Additional Sessions Judge was not legally competent to arrest the petitioner in a case which had not been sent up to him under section 1.90 (3), Cr. P. C. The, learned counsel informs that this order of the learned Additional Session Judge has been challenged through Crl. R. No. 345/82 which has been admitted vide order dated 3rd June, 1982. Learned counsel for the State is not in a position to controvert the factual aspect of the case.

3. After hearing the Learned counsel for the parties, I am of the opinion that since Crl. Revision wherein the order dated 3rd June ' 1982 of the Additional Sessions Judge has been challenged, has since been admitted it is a fit case for the grant of bail.. The petitioner is, therefore allowed bail in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of A. C. Bhakkar.

4. The learned Additional Sessions Judge Bhakkar is hereby directed to report as to under what provisions of law, he has arrested the accused before taking cognizance under section 190 (3), Cr. P. C. His report should be placed before me at Multan Bench. M. Y. H. Bail granted.