MST. ILAMAND Versus DAWOOD KHAN
Mst. Rokhana and Daud Khan, accused‑respondents, while in custody were placed on trial for offences falling under sections 5, 11 and 16 of the Offence of Zina (Enforcement; of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) because in the early round their plea of bail was finally rejected on 18‑11‑1990 by S. Fakhr‑e‑Alam, C.J., as his Lordship then was. On 16‑7‑1991 the learned Sessions Judge, who was then seized of the matter `without going into the merits of the case' admitted `both the petitioners (accused/respondents herein) to bail in the sum of Rs.5 lacs with rive sureties each to the satisfaction of his Court ..' because `P.W. Matiullah Alizai (who had recorded the confessional statements of the two accused‑respondents) was not present, though last chance had been given to the prosecution to produce him in his. Court'. It was further observed by the learned Sessions Judge that `even on previous date i.e. on 17‑6‑1991 as well as on 22‑5‑1991 last chances were given to the prosecution to produced him in the Court, but he was not produced' particularly `when the EA.C. has received the summons' and further that "as both the accused are lodged in jail since long and prosecution is not producing the EA.C., though 3 last chances were given".
2. Mst. Ilamand, petitioner, feeling aggrieved, has moved this application for cancellation of bail granted to the accused‑respondents.
3. Mr. Jalaluddin Khan, learned counsel for the petitioner, has contended that even the succeeding order sheet, dated 26‑8‑1991 recorded by the learned Sessions Judge had brought on the surface unchaste haste in admitting the accused‑respondents to bail and that, in any case, the release of the accused respondents on bail on the ground of failure of the prosecution to produce an official witness particularly a Magistrate, was unwarranted by any precedent. According to the learned counsel, the entire evidence had been recorded except for formal statement of Matiullah Khan, E.A.C., who had recorded the confessional statements of the two accused‑respondents. The learned counsel submitted that the inability of the learned Magistrate to appear in the trial Court was evident from the order‑sheet dated 26‑8‑1991 in that he had been admitted in a hospital at Lahore and that on that score too there was absolutely no warrant for the learned Sessions Judge to have enlarged the accused‑respondents on bail, more‑so, when their plea for bail had not been entertained on merits even by this Court.
4. Mr. M. Azam Khan, Addl. Advocate‑General has supported the plea of cancellation of bail granted‑to the accused‑respondents.
5. Mr. Abdul Aziz Kundi, learned counsel for the accused‑respondents, on the other hand, argued that the impugned order of the learned Sessions Judge granting bail to the accused‑respondents was unexceptionable but conceded that he could not lay his hands on any authority for the proposition that if during the trial a witness cannot be produced by the prosecution the accused arc entitled to be released on bail.
6. After hearing the learned counsel for the parties and going through the record, I am of the considered view that there is no authority for the proposition that an accused person whose plea of bail has not been entertained on merits even upto the High Court can legally be released on bail on the ground that the prosecution has not been able to produce a witness. Under the law, the authority vests in the Court to have resort to coercive measures in the case of a witness being adamanat to appear or was guilty of wilful default but on no hypothesis the accused would be entitled to the concession of bail pending examination of such witness.
7. While deprecating the course of action resulting in the passing of the impugned order, I am constrained to accept this petition and recall the order allowing bail to the accused‑respondents. They are present in Court and have been taken into custody. I have been informed that Mst. Rokhana accused respondent has got a suckling baby of hardly 2‑1/2 months old. Since she has been taken into custody the baby may also remain in jail but as one a formal witness remains to be examined, therefore, I direct that the case should be decided within three months failing which the accused‑respondents would be entitled to .approach this Court for their release on bail. The office is directed to make sure that the record of the case is returned within a week to the trial Court.,
N.H.Q./1370/P. Bail cancelled.