HAFIZ ABDUL REHMAN ANSARI, J.---Through this petition, the petitioners seek pre-arrest bail in case F.I.R. No,290/2009 dated 14-8-2009 registered at Police Station Thingi, District Vehari under sections 365-B, 376, P.P.C. At the instance of Muhammad Hanif son of Muhammad Saddique, complainant.
2. Brief facts of the case are that Fozia Gulshan daughter of complainant contracted marriage 1-1/2 years ago with Muhammad Kamran son of Asghar Ali and both were living happily in their house. A week ago Mst. Fozia Gulshan came to his house and Sarfraz Ali accused was serving with him since 2 years, during this period he developed illicit relation with Fozia Ghulshan when this fact came into the knowledge of complainant, he dismiss Sarfraz Ali accused from service but accused Sarfraz Ali had been coming in the house of other co-accused upon this he forbade them but they did not obey and on 28-7-2009 when he and his wife went to Vehari for shopping, when they came, his daughter was not present in the house, on the way witnesses met him and told that they saw Fozia Ghulshan with accused persons going in a Ricksha, gold ornaments were also stolen. Through Panchiat he demanded to return Fozia Ghulshan but the accused persons refused to give her, hence, this F.I.R.
3. Petitioners applied for their ad-interim pre-arrest bail before the learned Session Judge, Vehari which was entrusted to the learned Additional Sessions Judge, Vehari, who vide order dated 24-8- 2009 dismissed the same.
4. Learned counsel for the petitioners submits that Mst. Fozia Gulshan daughter of the complainant filed suit for recovery of dowry against Sarfraz on the next date of hearing, she withdrew it that the main accused in the F.I.R., namely, Sarfraz, against whom the allegation of commission of Zina is attributed is bailed out by the learned Additional Sessions Judge, Vehari vide order dated 5-10- 2009; that petitioners have not committed any offence and the case is false, baseless and concocted and the petitioners have been implicated in this case with mala fide; that no occurrence whatsoever has ever taken place as alleged in the F.I.R. And the entire story is concocted and hatched by the complainant in connivance with the local police with mala fide and ulterior motives; that even otherwise, the alleged F.I.R. Has been registered after unexplained delay of 17 days which creates doubt regarding the truthfulness of prosecution story; that it is pertinent to mention here that Mst. Fozia Gulshan did not accept Nikkah with Kamran but she admitted Nikkah with Sarfraz co-accused and she also instituted a suit titled as Mst. Fozia Gulshan v. Sarfraz for the recovery of dowry articles which is still pending adjudication; that principle accused has been granted bail by the learned Additional Sessions Judge, Vehari, so the petitioners are also entitled for pre-arrest bail on the rule of consistency and no one can be deprived on the ground of technicalities; that Mst. Fozia Gulshan also submitted an affidavit in which she admitted her marriage with Sarfraz, co-accused and in the light of statement of Mst. Fozia Ghulshan the case of the petitioners is made one of further inquiry; that initially F.I.R. Was registered under section 496-A, P.P.C. But later on, Investigation Officer of the case deleted section 496-A, P.P.C. And added sections 365-B/ 376, P.P.C. With mala fide intention and ulterior motive as there was no evidence available for adding section 365-B/376, P.P.C. That local police is playing in the hands of complainant and want to arrest the petitioners with mala tide intention and if the petitioners are arrested they would suffer humiliation and irreparable loss; that petitioners are previously non-convict and non-record holder; that no Nikah Nama regarding alleged marriage of the daughter of the complainant with Kamran has been produced during the investigation, whereas Zahoor, co-accused has been found innocent; that case against the petitioner requires further probe into the guilt, and hence becomes a matter of further inquiry, therefore, the petitioners are entitled to the concession of bail.
5. Learned counsel for the complainant states that consideration for grant of pre-arrest and post- arrest bail are entirely different; that petitioners could not establish any mala fide on the part of the complainant or on the part of the police to connect the present petitioners with the commission of offence; that the conduct of the petitioner does not entitle him for discretionary relief under section 498, Cr.P.C. That ad interim pre-arrest bail allowed to the petitioners was dismissed on 24-8-2009 on account of their nonappearance as well as on merits; that after dismissal of their bail petition by learned trial Court after 1-1/2 months they moved petition under section 22-A, Cr.P.C. That section 365-B, P.P.C. And 376, P.P.C. Is added; that the offence does fall within the prohibitory clause of section 497 Cr.P.C.; further submits that Mst. Fozia Gulshan alleged abductee after her statement before the Magistrate under section 164 have connected the present petitioners to the incident of her abduction, in the investigation present petitioners are found guilty.
6. Learned Assistant District Public Prosecutor states that on the petition under section 22-A, Cr.P.C.
This case was got registered on this account there is delay and the accused are nominated in the F.I.R.
7. I have heard the learned counsel for the parties at length and perused the record.
8. After arguing the case at some length learned counsel for the petitioner withdrew his petition to the extent of Muhammad Yasin son of Yousaf petitioner No,1 Mst. Sajida Bibi, petitioner No,2 applied for ad interim pre-arrest bail before the learned Additional Sessions Judge, Vehari, who vide dated 5-10-2009 dismissed the same on merits in absence of the petitioner as petitioner could not reach the Court in time.
9. The main accused Sarfraz named in the F.I.R. Was allowed post arrest bail by the learned Additional Sessions Judge, Vehari, who vide order dated 5-10-2009 against whom the allegation of commission of Zina was levelled in the F.I.R. The allegation against Sajida Bibi is only of facilitating and abetting the abduction of Mst. Fozia Gulshan married with Muhammad Yasin against wishes of her father present complainant, namely, Muhammad Haneef. The prosecution did not produce any proof of marriage of Mst. Fozia Gulshan with Muhammad Kamran son of Asghar Ali as alleged by the complainant Muhammad Haneef father of Mst. Fozia Gulshan. The only allegation against Mst.
Sajida and Muhammad Yasin her husband is made by the complainant that inspite of the fact that complainant warned Sajida and Yasin that Sarfraz should not visit their houses as he has developed illicit relations with Mst. Fozia Gulshan daughter of the complainant and he had relieved him from his personal employment Neither Kamran alleged husband appeared before the I.O. To confirm his marriage with Mst. Fozia Gulshan daughter of the complainant by recording statement under section 161 Cr.P.C. Nor he became the complainant of the case; that no Nikah Nama regarding alleged marriage of the daughter of the complainant with Kamran has been produced during the investigation whereas, Zahoor, co-accused has been found innocent during the investigation. The instant case is false, frivolous and baseless daughter of the complainant is legally wedded wife of the petitioner. She has not been abducted by any body. There is unexplained delay of 8 days, in lodging the F.I.R. And false implication cannot be ruled out. Mst.
Fozia Gulshan, alleged abductee, daughter of the complainant has owned her marriage with co- accused, namely, Sarfraz in family suit for recovery of dower before the Judge Family Court, Jehanian where she has admitted her Nikah with main co-accused Sarfaz Ali reveals that the whole story made by the complainant is false and concocted the F.I.R. Was got registered with mala fide just to teach lesson to the present petitioners, Sajida Bibi and her husband Muhammad Yasin as both had disobeyed the order of Hanif complainant keeping intact their relationship with main co-accused Sarfraz. To the extent of Sajida' Bibi wife of Muhammad Yasin offence does not fall, within the prohibitory clause of section 497 Cr.P.C.
10. Resultantly, this petition is accepted and the ad interim pre-arrest bail already granted to petitioner No,2, Sajida Bibi vide order dated 15-10-2009 is hereby confirmed.