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Criminal Miscellaneous No. 676 of 1983, decided on 4th December, 1983.

‑‑‑S.497 (5)‑‑Bail, cancellation of‑‑Pre‑arrest bail granted to accused charged for offence under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) in disregard of law laid down by Supreme Court in case reported in P L D 1983 S C 82‑‑Impugned bail order set aside, in circumstances.

P L D 1983 S C 82 ref.

Muhammad Ali Shaikh for Petitioner.

Sardar Muhammad Ishaq for Respondent No.2.

Dates of hearing: 20th and 28th November, 1983.

Applicant above named being aggrieved by order, dated 4th August, 1983 of the learned Xth Additional District and Sessions Judge, at Karachi, by which he granted bail before arrest to respondent No.2, has preferred the above petition for cancellation of said bail granted to respondent No.2, on the following facts and grounds:

The respondent No‑2 is involved in a case under Zina Ordinance under section 11 on the allegation that respondent No.2 kidnapped away daughter of complainant Usman named Khadija, who is said to be aged about 13 years.

The defence plea of respondent No.2 is that the major girl certified to be of 16 years by Police Surgeon and she has voluntarily gone with respondent N o.2 and married with him under Nikah nama, after swearing such affidavit before Mukhtiarkar and F.C.M., Khairpur.

The respondent No.2 after registering of above said case against him appeared in trial Court alongwith prosecutrix for grant of bail before arrest. The trial Court after hearing the Advocate for respondent No.2 and verifying documents relied upon by defence and after questioning prosecutirx who was present in Court, granted pre‑arrest interim bail to respondent No.2 which was confirmed vide order dated 4th August, 1983.

Applicant, who is father of the victim girl, has filed the above petition for cancellation of the said bail granted to respondent No.2, on the grounds mentioned in memo of above petition.

The main point urged by the learned Advocate for applicant in support of the above application was, that the learend trial Court did not follow the law laid down by Hon'ble Supreme Court, in case reported in P L D 1983 S C 82, in respect of grant of bail before arrest and consequently the said bail granted to respondent No.2 is liable to be cancelled, on this ground alone, as prima facie F.I.R. discloses a case of kidnapping against the respondent No.2 and stand of the respondent No.2, that prosecutrix is major and his wife, is yet to be established and therefore grounds available for bail before arrest were not at all there, in the present case.

The learned Advocate appearing for respondent No.2 very rightly conceded, that in view of the law laid down by Hon'ble Supreme Court in above mentioned reported case, respondent No.2 be given reasonable time to secure to bail from learned trial Court on merits under section 497, Cr.P.C. after surrender.

The learend Advocate appearing for the State, in view of above mentioned decision of Hon"ble Supreme Court has fully supported the above application for cancellation of bail before arrest.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the impugned order dated 4th August, 1983 by which interim pre‑arrest bail granted to respondent No.2, was confirmed by the learned trial Court as well as through the case reported in P L D 1982 S C 82.

Hon'ble Supreme Court in case of Murad Khan v. Fazle‑e‑Subhan, reported in P L D 1983 S C 82 had laid down the law for bail before arrest as under:‑

"As already observed, it has been reiterated by this Court in earlier noted cases, that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a necessary condition for pre‑arrest bail."

"It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty".

"The foregoing resume of the case‑law since 1949 and the recent trend of authority would show, that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre‑arrest bail."

In this case it may be noted, that learned Xth Additional Sessions District Judge, Karachi failed to notice and apply the abovementioned principles laid down by the Hon'ble Supreme Court. It was, therefore, not a fit case for grant of anticipatory bail, though after arrest; the respondent No.2 would have been at liberty to urge the points, on the basis of which the impugned order was passed.

Therefore I allow the above application and set aside the impugned order dated 4th August, 1983 of the learned Xth Additional District a Sessions Judge, Karachi by which respondent No.2 was granted bail and; direct the respondent No.2 to surrender himself before the learned trial Court.

However, since respondent No.2 is on bail from 4th August, 1983, I grant him interim bail for two weeks only, in the sum of Rs.20,000 with P.R. bond in the like amount, to the satisfaction of the learned trial Court, to enable respondent No.2 to surrender and move fresh bail application after such surrender, before the learned trial Court. The learned trial Court shall not take any adverse presumption on account of cancellation of bail granted to respondent No.2, vide this order, as such cancellation is not made on merits of the case.

S. G. D. Bail cancelled

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