1994 PLP 2277 (SCMR)

Art. 185(3)‑‑‑Penal Code (XLV of 1860), S. 452‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11‑‑‑Cancellation of pre -arrest bail ‑‑‑Order of High Court granting bail before arrest to the accused did not show that mala fides was pleaded as a ground for the grant of bail‑‑‑Mere fact that the accused had been found innocent during one of the investigations, would not constitute any valid ground for extending the extraordinary concession of pre‑arrest bail to him‑‑‑Pre‑arrest bail allowed to accused by High Court was cancelled in circumstances. M. Mohy‑ud‑Din Qazi, Advocate Supreme Court instructed by Tanvir Ahmed, Advocate‑on‑Record for Petitioner. Hanif Khatana, Advocate Supreme Court for Respondent No.

1. J. V. Gardner for the State. Date of hearing: 28th May, 1994 MUHAMMAD RAFIQ TARAR, J.‑‑‑This is a petition for leave to appeal by Mst. Bibi Rani against the order of a learned Single Judge of the Lahore High Court dated 31‑10‑1993 whereby he allowed bail before arrest to Najabat Ali respondent in a case under section 452 of the P.P.C. and Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The F.I.R. version is that on the night between 6/7th December, 1992 the petitioner and his co‑accused armed with fire‑arms and a hatchet trespassed into the house of the petitioner and forcibly abducted her daughter Mst. Maqsood Bibi. The petitioner had to file a writ petition for the registration of the case which was allowed and she lodged the F.I.R. on 2‑2‑1993. Mst. Maqsood Bibi returned home from the custody of the respondent and his co -accused after about a‑ fortnight. In her statement under section 164 of the Cr.P.C. she inter alia alleged that Najabat Ali respondent and his co‑accused Manzoor and Mushtaq had been committing Zina‑bil jabr with her during the period she remained in their forcible custody. The respondent was allowed bail before arrest by the High Court vide order dated 31‑10‑1993, the operative part whereof reads as under:‑‑ "

5. Two of the co‑accused, namely, Sultan Ahmad and Balla have been allowed bail by this Court on 29‑5‑1993 (Crl. M.No. 1822‑B‑1993). Since in one of the investigations, the petitioner has been declared to be innocent it has become a case of further inquiry. Accordingly, the interim bail granted to the petitioner is confirmed. "

3. Learned counsel for the petitioner contends that it was a heinous crime falling within the prohibitory clause of section 497 of the Cr.P.C., there was no allegation of mala fide, the respondent was found involved in the occurrence in the first investigation and Sultan Ahmad and Balla co‑accused were allowed bail on the ground of tender and old age respectively, therefore, it was not at all a fit case for the grant of extraordinary concession of pre‑arrest bail. Learned counsel for the respondent on the other hand submits that this case was brought as a counterblast to the case registered against the complainant party vide F.I.R. No. 14 dated 8‑1‑1993 and the respondent has been falsely implicated due to enmity.

4. We have considered the submissions made at the Bar in the light of the material available on the record. Learned counsel for the respondent has not been able to show what role the respondent had played in the earlier case in favour of the complainant of that case or against the petitioner herein. The contention that Sultan and Balla were allowed bail on the ground of age has not been controverted before us. There is nothing in the impugned order to show that mala fide was pleaded as a ground for the grant of bail. The mere fact than the petitioner was found innocent during one of the investigations would not constitute any valid ground for extending the extraordinary concession of pre- arrest bail to the respondent. We, therefore, convert this petition into an appeal and allowing it cancel the pre‑arrest bail allowed to the respondent by the High Court. N.H.Q./B‑344/S Pre‑arrest bail cancelled,