' On 1-12-2003 Zia-ur-Rehman petitioner laid information at Police Station Rohillanwali, District Muzaffargarh that he was married to Mst. Shahnaz Mai four years ago. A daughter was born her to him. His wife is two months' pregnant. Muhammad Aslam used to visit his house who developed illicit relations with his wife. He restrained him from visiting his house. Last night he was asleep in his house. In the morning when he got up, he did not find his wife present. He raised hue and cry whereupon the persons mentioned in the' F.I.R. Came there. It was found that the goods and cash amount detailed. In the F.I.R. Are missing. He started looking for his wife when he met Mujahid'
Hussain who told him that he has seen Muhammad Aslam and two others along with Mst. Shahnaz on a vehicle going towards city. He complained that his wife had been abducted by Muhammad Aslam along with his accomplices for commission of Zina. A case under section .16 of Ordinance No,VII of 1979, was registered vide F.I.R. No,312. The case was investigated into.
2. The respondent No,1, could not be arrested and an incomplete challan was submitted on 13-5- 2004. The respondent No,1 was declared as a proclaimed offender. On 8-3-2005 the learned trial Court took note of the fact that the respondent No,1 has been declared to be a proclaimed offender and issued non-bailable warrants for his arrest for 18-3-2005. On 17-3-2005 an application for grant of pre-arrest bail was filed by the respondent No,1 which came up before a learned Additional Sessions Judge-IV, Muzaffargarh, on 17-3-2005 who issued notice and admitted him. To interim pre-arrest bail. On 24-3-2005 the learned Additional Sessions Judge was apprised that the trial is pending before a learned Additional Sessions Judge-H, Muzaffargarh. He accordingly sent the file to the learned Sessions Judge, Muzaffargarh, for appropriate orders and directed the parties to appear in the said learned Court on 25-3-2005. On the said date, the learned Sessions Judge, Muzaffargarh, transferred the bail application to the learned trial Court. On 26-4-2005 the respondent No,1 absented himself and his pre-arrest bail was withdrawn by the learned trial Court.
Non-bailable warrants of his arrest were issued for 13-5-2005 on 26-4-2005. On this date the learned trial Court observed that Mian Muhammad Ahmad Langha, Advocate, has produced Muhammad Aslam before him. He be taken into custody. It was further observed that as the accused has himself put up his appearance, therefore, he is directed to submit surety bonds as required under section 91, Cr.P.C. In the sum of Rs,1, 00,000 with two sureties in the like amount to his satisfaction. At the same time, the S.H.O. Of the said police station was directed to file a complete report under section 173, Cr.P.C.
3. Learned counsel for the petitioner contends that the learned trial Court for all purposes has granted pre-arrest bail to the petitioner without a notice and without complying with the provisions of sections 496 and 497, Cr.P.C. According to him, provisions of section 91, Cr.P.C. Are to be read in conjunction with the said sections 496 and 497, Cr.P.C. He relies on the case of Noor Nabi and 3 others v. The State 2005 PCr.LJ 505. Learned A.A.-G. States that a learned Full Bench of this Court, in its judgment dated 1-6-2005 inter alia, in Writ Petition No,11862 of 2004 (Khizar Hayat v. Inspector- General of Police (Punjab), Lahore and 7 others) has approved the said dictum of the learned High Court of Sindh High Court at Karachi. Learned counsel for the respondent No,1, on the other hand, contends that on a plain reading of section 91, Cr.P.C. The impugned order of the learned trial Court cannot be stated to be illegal.
4. I have examined the available records as also the relevant provisions of Cr.P.C. In the light of said judgments. I deem it appropriate to reproduce hereunder the observations of my learned brother Asif Saeed Khan Khosa, J. Who delivered the opinion of the Full Bench appearing at pages 43 and 44 of the said judgment:-- "The powers available during an investigation, enumerated in, Part-V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, include the powers to arrest an accused person and to effect recovery from his possession or at his instance. Such powers of the Investigating Officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case. In the case of Noor Nabi and 3 others v. The State 2005 PCr.LJ 505 a learned Judge in Chambers of the Honourable Sindh High Court has already clarified that section 91, Cr.P.C. Deals only with procuring attendance of a person before the Court and after his availability before the Court the matter of his admission to bail or not rests in the hands of the Court and that the impression about automatic admission of an accused person to bail in a case of private complaint is erroneous."
5. Now examining the present case in the light of the said judgment of the learned Full Bench cited by the learned A.A.-G. And the said judgment of the learned High Court of Sindh at Karachi in the case of Noor Nabi and 3 others, I find that notwithstanding the fact that the respondent No,1 had put in appearance before the learned trial Court, provisions of sections 496 and 497, Cr.P.C. Had not been rendered ineffective and the learned trial Court has acted with lawful authority in assuming that the respondent No,1 is entitled to automatic admission to bail. There was no power vesting in the learned trial Court to release the respondent No,1 after taking him into custody without passing an order in terms of section 497, Cr.P.C. This criminal miscellaneous is accordingly treated as an application under section 561-A, Cr.P.C. And is allowed and the impugned order of the learned trial Court is set aside. The respondent No,1 shall, however, be entitled to apply for grant of bail and if such an application is filed, the same shall be considered and decided by the learned trial Court after hearing the complainant as well as the State in accordance with law.