AURANGZEB vs AWAL REHMAN and anothers

' FAZAL ILAHI KHAN, C.J.--- In this application under section 497(5), Criminal Procedure Code read with Article 203-DD of the Constitution of Islamic Republic of Pakistan, by Aurangzeb son of Akhtar Biland resident of Industrial Estate Quarter No,42-B, Labour Colony Hayatabad, Peshawar, prayer is made for cancellation of bail granted to the accused/respondent by this Court in Criminal Miscellaneous Application No,149/I of 1999 in Criminal Revision No,16/I of 1999.

2. It may be briefly stated that the accused/respondent made an application for bail which was accepted by Illaqa/Judicial Magistrate, in case F.I.R. No, 462, dated 16-7-1998 for an offence under sections 10, 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance). The petitioner challenged the bail order in the Court of Additional Sessions Judge, Peshawar. The learned Additional Sessions Judge by order, dated 6-1-1999, accepted the application and set aside the order of the learned Judicial Magistrate granting bail to the accused. Feeling aggrieved the accused approached the Honourable Peshawar High Court, for setting aside the order of the learned Additional Sessions Judge and for grant of bail but his petition was dismissed on 22-2-1999.

3. It is alleged by the learned counsel for the complainant/petitioner that the accused then approached this Court (Federal Shariat Court) for grant of bail. Mr. Justice Abdul Waheed Siddiqui (now retired), Honourable Judge of this Court, by order, dated 29-10-1999 confirmed the interim bail earlier granted by it.

4. Complainant aggrieved by the order mentioned above has filed the present Review. Petition No,1/P of 2001 and Criminal Miscellaneous Application No,6/P of 2001 under Article 203-DD of the Islamic Republic of Pakistan to recall the order whereby the accused/respondent was granted bail by this Court.

5. We have heard learned counsel for 'the parties and have gone through the entire record.

' Main contention of the learned counsel for the petitioner is that the fact that his application had been rejected by the Honourable High Court, Peshawar was concealed from the Court is misconceived. Ongoing through the grounds of the revision petition filed in this Court it has been specifically mentioned that his application for grant of bail stood dismissed by the Honourable High Court. As far as the competency of the Revision Petition No, 16/I of 1999 is concerned, the same was competently filed under rule 31-A of the. Federal Shariat Court (Procedure) Rule, 1981. The learned Judge further considered the merits and exercised his discretion in granting bail to the accused. Such order not challenged in a higher forum, does not require interference in exercise of the jurisdiction under Article 203-DD of the Constitution.

6. As far as objection of the learned counsel that the learned Judge while granting bail to the accused has gone deeper into the merits of the case and has almost thrown away the entire prosecution evidence, while coming to the conclusion that the accused was entitled to the concession of bail, has got some force. Although those observations are tentative in nature but they have created an impression, which could definitely, affect the trial of the accused and create hindrance in the assessm ent of the evidence by the learned trial Judge while deciding the case on merits. The observations of our learned brother with regard to the confessional statement and its admissibility and holding it of dubious nature and rejection of the medical report on the facts and circumstances of this case at the bail stage is beyond the scope of tentative assessment. The finding that it cannot reject the affidavit of Mst. Shaheen is also unsustainable at this stage. It is for the trial Court to evaluate the evidentiary value of the confessional statement, the medical evidence and the affidavit filed by Mst. Shaheen, when such evidence is brought on record and opportunity provided to the parties to examine and cross-examine the witness basing reliance on it. The observations referred above and similar other also made by my learned brother require interference in exercise of the power under Article 203-DD of the Constitution for the ends of criminal justice.

7. For the reasons stated above while maintaining the order of our learned brother, dated 29-10- 1999 granting bail to the accused/respondent the observations made by the learned Judge referred to above specially with regard to confession, medical report and the evidentiary value C of the affidavit and others are set aside. The learned trial Judge while appraising the evidence and giving decision on merits shall ignore such observations. The review petition is accepted to the extent stated above.