1996 P Cr (PLP)

4. The learned counsel for the petitioner seeks cancellation of bail of the respondents on the following grounds:‑‑ (i) That there is overwhelming evidence on record connecting the respondents with the abduction of the alleged abductee which besides her statement under section 164, Cr.P.C., as also her statement before this Court in Criminal Miscellaneous No.402‑H/94, consists of independent eye‑witnesses; (ii) That the respondents were granted pre‑arrest bail in derogation to law laid down by the superior Courts to the effect that the apprehension of arrest due to ulterior motives is a condition precedent for the grant of such a relief. No mala fides or ulterior motive alleged by the respondents.

5. The learned counsel for the respondents as also for the State have not supported this petition for cancellation of bail. The learned counsel for the respondents submits as under:‑‑‑ (i) That as per F.I.R. itself, Mst. Rubina Kausar developed illicit relations with co‑accused Muhammad Ashraf in consequence of which she eloped with him. That being so, the question of respondents' abetment in abduction or elopement would call for further inquiry, (ii) That there is absolutely no element of coersion or pressure exerted by the respondents on the alleged abductee elope with Muhammad Ashraf co‑accused; (iii) That Ashraf co‑accused has claimed to have married the alleged abductee. When she was recovered, she was medically examined and it was found that she was pregnant and the said pregnancy was 26/28 weeks old. This shows that the alleged abductee was in fact a consenting partner in the said marriage and elopement. The learned counsel for the State, on the other hand, has not supported this petition for cancellation of bail on the ground that the respondents are no longer required for the investigation purposes as the challan has already been submitted in Court.

6. It is settled principle governing the cancellation of bail that once a bail has been granted by a competent Court, it cannot be cancelled by the superior /a Courts unless the bail granting order is arbitrary, capricious and against the weight of evidence on record. The principles for the grant and cancellation of bail are different. This view is in line with the following judgments of this Court:‑‑‑ (i) 1991 PCr.LJ 241 (Ghulam Rasool v. Khadim Hussain and others) (ii) 1991 MLD 579 (Bashir Ahmad v. Mirza Muhammad Yaqoob and others) In the case in hand, the respondents have admittedly been granted pre‑arrest‑bail by a Court of competent jurisdiction after hearing the petitioners and the respondents. The bail granting order does not reflect that the same has been passed without reference to the material on record. Mst. Rubina Kausar is admittedly 17/18 years of age. The complainant himself states in the F.I.R. that Muhammad Ashraf accused had developed illicit relations with her and further that she was abducted pursuant to that relationship. It is further alleged in the F.I.R. that two witnesses saw the respondents accused and co‑accused Muhammad Ashraf boarding a wagon and going towards Chishtian. One of the witnesses, namely, Muhammad Bakhsh asked co‑accused Muhammad Ashraf as to where they were going to which he replied that they were taking Mst. Rubina Kausar to his father's house in Chak No.234/9R. The afore‑referred narration of the prosecution story prima‑facie' would indicate that the alleged abductee accompanied Muhammad Ashraf in broad‑day‑light, had boarded a wagon at a public place, met the witnesses who were known to her family and at no stage she raised alarm that she was being forcibly taken away. Co‑accused Muhammad Ashraf claims to have married the alleged abductee and it is also on record that when she was recovered, she was pregnant by about 26/28 weeks. If this was an elopement with consent for purposes of marriage then prima facie the alleged commission of offence and their involvement would call for further inquiry. Considering the matter from this angle, I am of the view that the discretion exercised by the learned Additional Sessions Judge in allowing bail to the respondents cannot be said to be injudicious or improper as the grounds which weighed with the learned Court while granting bail were germane to the issue. The view expressed by the learned A.S.I. is not perverse and, therefore, does not merit interference.

7. The apprehension of immediate arrest for ulterior motives and the mala fides attributed to the prosecution are generally considered to be conditions precedent for the grant of such relief. The respondent alleged mala fides against the complainant who according to respondent was not happy over the marriage and got registered this false case against him. I would restrain myself from commenting further on the plea being raised, suffice it to say that respondent did apprehend immediate arrest in a case got registered by Mst. Rubina Kausar's father who prima facie was enraged over the Nikah. In view of the above and considering that this is a petition for cancellation of bail of respondents against whom there is no allegation of misuse of the bail, I am not inclined to cancel their bail and send them behind the bars as it would not serve any useful purpose. I am fortified in my view by a judgment of the Honourable Supreme Court reported in 1976 SCMR 360 (Shahid Arshad v. Muhammad Naqi Butt and 2 others) wherein it was observed:‑‑‑ 'S.497/498 ‑‑‑Bail‑‑‑Supreme Court on being informed by Counsel for State that inquiry proceedings were likely to conclude soon refusing to interfere with High Court's order refusing bail to respondent‑‑‑High Court, nevertheless, subsequently granting bail to respondents‑‑ Supreme Court, though not happy about order thus .passed, nevertheless, in view of their being nothing to show misuse of their privilege by the accused not feeling advised to interfere, with High Court's order at such stage‑‑‑Petitioner advised to approach High Court for cancellation of bail should any one of respondents misuse privilege of bail at any time."

8. For what has been discussed above and respectfully following the above referred dictum of the august Supreme Court, this petition is dismissed as having no merit. N.H.Q./G‑300/L Petition dismissed.