2004 PLP 893 (SCMR)

Malik Abdul Wahid, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 25th February, 2003. JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against order dated 9‑1‑2003 passed by learned Single Judge of the Lahore High Court, Lahore, in chambers whereby ad interim pre‑arrest bail granted in favour of respondents has been confirmed.

2. It is mainly contended by Malik Abdul Wahid, learned Advocate Supreme Court on behalf of petitioner that pre‑arrest bail should not have been granted in view of sufficient incriminating material available against respondents connecting them with the commission of offence. It is further contended that the discretion as conferred upon the learned Single Judge has not been exercised judiciously which resulted in serious miscarriage of justice. It is also pointed out that the respondent had abducted the wife of petitioner for the purpose of Zina which aspect of the matter has been taken very lightly by the learned High Court resulting in serious prejudice.

3. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record made available. The order impugned has been perused carefully, operative portion whereof is reproduced herein-below for ready reference:‑‑ "

7. I have carefully considered the arguments. From the record it appears that as a result of investigation the offence under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was deleted while section 10 of the Ordinance had been added. However, there does not appear to be any direct evidence with the prosecution about the commission of offence of Zina by the accused. It has been mentioned above that as a result of investigation section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has been deleted. It has been asserted that the petitioner has been falsely implicated in this case with ulterior motives. Under the circumstances of the case and on account of the fact that the F.I.R. was lodged after a delay of almost seven months, the petitioner is entitled to the concession of bail. Therefore the bail application is accepted and the interim pre‑arrest bail already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.40,000, with one surety iv the like amount, to the satisfaction of learned Sessions Judge, Faisalabad, within seven days. "

4. A bare perusal of the operative portion of the order impugned would reveal that offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, has already been deleted. Insofar as section 10 of the Ordinance is concerned sufficient incriminating material is lacking on the basis whereof it could be inferred that prima facie an offence has been committed under section 10 of the Ordinance. There is no denying the tact that a suit for dissolution of marriage has been filed by the wife of petitioner who has left the house of petitioner and took shelter in Darul Aman and subsequently shifted to Dastak which reflects that she does not want to live with her husband. Insofar as the question of custody of children are concerned it has no relevance whatsoever with the issue in hand and hardly needs any comments.

5. Be as it may, the order impugned being free from any illegality or infirmity does not warrant any interference. We are, therefore, not inclined to grant leave and the petition being meritless is dismissed. N.H.Q./M‑788/S Leave refused.