1990 P Cr (PLP)

Saeed-ur-Rehman Farrukh for Petitioner. This is a petition for, cancellation of bail before arrest granted to the respondents.

2. The respondents herein are accused of offences under sections 10/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No.242, dated 3-12-1989 registered at Police Station City Kamalia, at the instance of the petitioner.

3. According to the F.I.R., in brief Mst. Nasim Akhtar, respondent No.7, daughter of the petitioner was married to Liaqat Ali, respondent No.l on 30-5-1989 but no Rukhsati had taken place, and that thereafter, respondent No.l Liaqat Ali, had pronounced Talaq upon the said Mst. Nasim Akhtar, and that the same had become final on 30-9-1989. It is further stated therein that on 2-10-1989 respondent No.l, Liaqat Ali, with the assistance of respondents Nos.2 to 6 abducted the said Nasim Akhtar, respondent No.7, and was committing Zina with her. It was further stated therein that Mst. Nasim Akhtar had also taken ornaments with her.

4. The learned Additional Sessions Judge, Toba Tek Singh had admitted respondents Nos.l to 7 to interim bail before arrest, which was duly confirmed vide his order dated 4-1-1990. The learned Additional Sessions Judge had allowed the pre-arrest bail to the respondents on the grounds that the notice of Talaq was duly withdrawn by respondent No.l, and that thereafter, the suit for restitution of conjugal rights was duly decreed in favour of respondent No.l against respondent No.7, Mst. Nasim Akhtar, vide judgment, dated 3-10-1989 by the learned Judge, Family Court, Kamalia, and as such, the case of the respondents was one of further inquiry and covered under the provisions of subsection (2) of section 497, Cr.P.C.

5. The learned counsel for the petitioner has contended for the cancellation of the bail before arrest granted to the respondents on the grounds that the Talaq pronounced by respondent No1. had attained finality and as such, respondents Nos.1 and 7 were no more legally wedded to each other; and that the suit for restitution of conjugal rights was decreed as a result of collusion between the parties, as the same was instituted on 2-10-1989 and decreed on the very next day 3-10-1989; and that like the suit for restitution of conjugal rights, to create defence in the criminal case, respondent No.l has inserted in the record a notice purportedly withdrawing the earlier Talaq with the connivance of the concerned officials, and that, therefore, the bail before arrest having been granted on the basis of the decree in the suit for restitution of conjugal rights and the withdrawal of the notice for Talaq, under the circumstances, is liable to be set aside.

6. After having heard the learned counsel at considerable length, it is to be noted that the learned counsel for the petitioner failed to satisfy the Court in respect of the case of the respondents not being one of further inquiry in view of the judgment dated 3-10-1989 by the learned Judge, Family Court, Kamalia, stated above. The learned counsel was forced to concede that the said decree for the restitution of conjugal rights was by a Court of competent jurisdiction, and that unless it is set aside in accordance with law, the legal right and the legal status thus established, and the advantage and the benefit thus accruing in favour of a party or parties by the said judgment, shall hold the field, and shall benefit such a party or parties even at the bail stage.

7. Therefore, in view of what has been stated above, but without commenting on the merits of the case, it is hereby held that the learned counsel for the petitioner has failed to point out any legal infirmity in the impugned order of bail. The bail before arrest granted to the respondents is based on very valid B and cogent grounds, as stated above, and does not call for any interference. Therefore, the present petition for cancellation of bail of the respondents being I without any merits is hereby dismissed in limine. N.H.Q/M-2214/L Petition dismissed.