2005 PLP 1298 (MLD)

Upon the written application of Allah Diwaya son of Malik Ghulam Hyder, police of Abbas Nagar Police Station, registered an F.I.R. No.249 of 2003 on 30-10-2003 under sections 471, 420, 468, P.P.C. According to the aforesaid F.I.R., sister of the informant, Mst. Nazir Mai had performed second marriage with Noor Muhammad son of Karim Bakhsh on 15-7-2003, after the death of her first husband on 3-8-2001 and after the expiry of period of `Iddat'. Narrating the incident, informant stated that on 18-10-2003, Mushtaq Ahmad, Muhammad Amin and Mst. Balqees Mai got thumb-impressions of Mst. Nazeer Mai upon some document deceitfully by stating that amount from 'Baitul Mal' was to be got delivered to Mst. Nazir Mai. But afterward these thumb-impressions were converted into forged document attributing Nikah of Mushtaq Ahmed accused-petitioner with Mst. Nazir Mai, sister of the informant, although no nikah was got performed by Mst. Nazir Mai. Mushtaq Ahmed petitioner was arrested on 31-10-2003 but was granted bail on 1-11-2003 by Magistrate Ist Class, Bahawalpur. An application for cancellation of the bail, granted to Mushtaq Ahmad petitioner and his accomplices, was moved by the informant before the learned Sessions Judge, which was taken up by the learned Additional Sessions Judge, Bahawalpur and the same was accepted on 7-2-2004 and the bail granted to the petitioner Mushtaq Ahmad was cancelled/recalled while the bail of Muhammad Remzan, Muhammad Ishaq and Muhammad Amin was kept intact. Aggrieved from this order dated 7-2-2004, Mushtaq Ahmad petitioner has filed this application for grant of bail after arrest.

2. Learned counsel appearing on behalf of the petitioner has argued that sections 420 and 471, P.P.C. were bailable while the offences under sections 468/471, P.P.C. were not cognizable and under section 155 (2). Cr.P.C. police cannot take cognizance of these offences unless prior permission is obtained from the competent Magistrate. It has further been argued that all these offences with which the petitioner has been charged, do not fall within the prohibitory clause of section 497, Cr.P.C. As per learned counsel there was no plausible ground to cancel the bail granted to the petitioner. Arguing the case with vehemence, learned counsel has submitted that the petitioner and all his family members are being involved in false criminal cases. Another F.I.R. No.266 of 2003 was got registered by. Allah Diwaya through Noor Muhammad son of Karim Bakhsh. In which bail before arrest petition filed by Mushtaq Ahmad accused-petitioner was got cancelled and he was arrested in that case also. As to the dispute with regard to genuineness of Nikah of Mst. Nazir Mai performed with Mushtaq Ahmad or Noor Muhammad, proper Court is the Family Court, which has already taken cognizance and is going to decide the case in the near future. Till the decision of the aforesaid Court, the petitioner is entitled to be granted bail after arrest.

3. Opposing the prayer of the learned counsel for the petitioner, it has been stated that the offence was being repeated by Mushtaq Ahmad, petitioner. So, the bail was rightly cancelled by the learned Additional Sessions Judge on 7-2-2004.

4. I have considered the arguments of the learned counsel appearing on behalf of the parties and have perused the record of the case.

5. It appears that both the parties are at daggers drawn to get the hand of Mst. Nazir Mai. Mushtaq Ahmad accused-petitioner claims her as his legally wedded wife whereas Noor Muhammad son of Karim Bakhah is the rival claimant of Mst. Nazir Mai also as her husband. Who is the real and genuine husband, has still to be adjudicated upon from the learned Judge Family Court, competent to adjudicate upon the dispute. Therefore, justice demands that bail should be granted to Mushtaq Ahmad accused petitioner also so that he should be granted opportunity to prove/defend his case before the learned Judge Family Court. Even it is settled law when bail is granted to an accused in a case; then it should not be cancelled/recalled unless there are cogent and convincing grounds or the case demands cancellation of bail necessarily due to the compulsive nature and circumstances of the case. To keep the accused-petitioner behind the bar would not serve any useful purpose to the case of the prosecution. I have not found any sound reasons in the impugned order of learned Additional Sessions Judge of cancellation of bail after arrest of the petitioner. The bail being rule especially in the bailable offences and in cases not falling within the prohibitory clause with exceptions it should be extended as a rule while refusal should be an exception. The offences having not fallen within the prohibitory clause, the petitioner-accused Mushtaq Ahmad is allowed bail in the sum of Rs.50,000 (Fifty thousand rupees) with one surety in the like amount to the satisfaction of learned trial Court. The instant petition stands disposed of. H.B.T./M-1052/L Bail allowed.