1997 SCMR 278 (PLP)

(b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16‑‑‑Offence not falling within the prohibitory clause of S.497(1), Cr.P.C.‑‑ Accused not entitled to bail as a matter of course‑‑‑Mere fact that the offence with which the accused was charged does not fall within the prohibition contained in S.497, Cr.P.C. does not mean that he is entitled to be released on bail as a matter of course. Mian Abdul Khaliq, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners. Ch. Ibrahim, Advocate Supreme Court for the State. Date of hearing: 18th November, 1996. ZIA MAHMOOD MIRZA, J. ‑‑‑Petitioners who are accused in a case under section 10/16, Offence of Zina (Enforcement of Hudood) Ordinance of 1979 registered vide F.I.R. No.58/95 dated 23‑6‑1995 at Police Station Phullarwan, Tehsil Bhalwal, District Sargodha seek leave to appeal against an order of a learned Single Judge of Lahore High Court dated 13‑3‑1996 whereby bail granted to them by the learned Additional Sessions Judge, has been cancelled.

2. According to the allegations made in the F.I.R., the complainant's daughter Mst. Rukhsana was married to his nephew Allah Bakhsh and his grand daughter Mst. Bilqees was married to one Tariq Afzal petitioner developed immoral liaison with Mst. Rukhsana while Ehsan Elahi petitioner had developed illicit connections with the complainant's granddaughter Mst. Bilqees. On 19‑6‑1995, both the petitioners armed with fire‑arms came to the house of the complainant and abducted the two ladies. During the course of investigation, however, it was found that the alleged abductees were in fact accomplices in the commission of Zina and consequently they were all also arraigned as accused persons. All the four accused persons were allowed bail by the learned Additional Sessions Judge on 3‑9‑1995 on the ground that no direct evidence of the commission of Zina was available against them; that the case against them was one of further inquiry and that the offence under section 16 of Ordinance VII of 1979 did not fall within the prohibitory clause of section 497 of Cr. P.C.

2. The complainant moved an application (Cr. Misc. 271/CB‑96) for cancellation of the bail granted to the present petitioners. Learned Judge of the High Court has recalled the order granting bail to the petitioners holding that the discretion exercised by the Additional Sessions Judge "was in utter disregard of the established principles governing the question". The learned Judge has observed that there was no previous enmity between the parties and as such there was no reason for the complainant to falsely implicate the petitioners in the case. It has been held by the learned Judge that "Even if it be presumed that Afzal and Shanna accused had not forcibly abducted these two females, the least that emerges is that both of them had developed immoral liaison with these two married ladies and had enticed them away from their parental/matrimonial homes to live with them leading a life which was not acceptable either in morality or in law". The learned Judge has also taken note of the fact that both the alleged abductees had since been murdered and the complainant had lodged an F.I.R. regarding their murders against his own son who was a brother of Mst. Rukhsana and father of Mst. Bilqees and observed that it was on account of the conduct of these two petitioners that the entire family of the complainant has been destroyed. The learned Judge has held that the grant of bail is a discretionary relief and the conduct of an accused person seeking bail is an important circumstance to be taken into consideration when deciding whether he is entitled to the grant of bail or not. In the view of the learned Judge, Additional Sessions Judge while releasing the two petitioners on bail ignored this aspect of the matter. It has also been held by the learned Judge that even on merits, the circumstances available on the record strongly militated against the grant of bail to the petitioners.

3. We have heard the learned counsel for the petitioners. He has not denied that both the alleged abductees were married women but sought to rely upon their statements recorded under section 164 of the Cr.P.C. to show that they had gone with the petitioners of their own free will. These statements, as rightly observed by the learned Judge, go to show that there did exist illicit connections between the two ladies and the petitioners who had enticed them away from their matrimonial abodes for immoral purpose, It appears that the learned Additional Sessions Judge when allowing bail to the petitioners was influenced by the fact that section 16 of Ordinance VII of 1979 does not fall within the prohibitory clause of section 497, Cr.P.C. We would like to make it clear that the mere fact that the offence of which the petitioners were accused does not fall within the prohibition contained in section 497, Cr.P.C. does no' mean that they were entitled to be released on bail as a matter of course. Learned Judge in the High Court has rightly observed that even in such cases, it is obligatory for the Court to consider all the attending facts and circumstances before deciding to release such an accused persons on bail.

4. Keeping in view the afore-noted factual and legal position, we are not inclined to interfere with the order of the learned Judge of the High Court re‑calling the orders grating bail to the petitioners. This petition is accordingly dismissed. N. M. Q. / M-3309/S Leave refused.