The events and circumstances culminating in filing of the present petition under section 497 (5) of the Code of Criminal Procedure for cancellation of the bail granted to the respondents by the learned Additional Sessions Judge, Sahiwal, by his order dated the 16th March, 1981, may be shortly described as follows. On the 24th August, 1980, at degerwela the respondents alongwith four other persons were alleged to have trespassed into the house of the petitioner in his absence and to have terrorised his were and son's daughter, Mst. Sheedan alias Balqis. They were said to have opened boxes lying in the house and removed ornaments therefrom and forcibly abducted Mst.
Sheedan alias Balqis who was hardly 14 years of age at that moment. The petitioner and his were, Mst. Khurshid Bibi, went to Police Station, Hujra Muqeem to report commission of offences of theft and abduction by the respondents and their co-accused but the police did not listen to them. On the 26August, 1980, Mst. Khurshid Bibi filed a Writ Petition (No. 9105 of 1980) in this Court for securing an order for registration of case by the Police. On the 30August, 1980, this Court directed the Police of Police Station. Hujra Shah Muqeem to register case. On the 1September, 1980, Mst.
Khurshid Bibi went to Police Station, Hujra Shah Muqeem alongwith the copy of the order of this Court and on her statement case against the respondents and their co-accused was registered.
During the investigation Mst. Sheedan alias Balqis was recovered from the custody of respondents and handed over to the petitioner. The accused were challaned and the case is pending in the Court of the learned Additional Sessions Judge, Sahiwal.
2. On the 14th February, 1981, a constable is said to have visited the petitioner and to have informed him that he alongwith Mst. Sheedan were required to appear before the Court of Session the next day. The petitioner accompanied by his cousin, Nawab, and Mst. Sheedan alias Balqis went to theth th st Court of Session, Sahiwal, but were told by the same constable over there that the hearing of the case had been adjourned. They came back and passed night at village Janpura. The next day, that is, on the 16February, 1981, they proceeded to their home village Bahrowal. They had hardly traversed a distance of a mile when they were attacked by the respondents and four other persons, namely, Sheeda, Aslam, Luddan and Khalid. They were all armed with dangs. They injured the petitioner and forcibly abducted Mst. Sheedan alias Balqis. They carried her away on a mare.
The petitioner went to Police Station, Hujra Shah Muqeem, which was ten miles away, and lodged the report of occurrence.
3. The Police could not catch-hold of the accused. On the 28th February, 1981, the respondents moved application for bail before arrest before the Court of Session, Sahiwal. The learned Additional Sessions, Judge, Sahiwal, granted them interim bail which he confirmed on the 16th March. 1981, by his impugned order. They produced Mst. Sheedan the abductee before the learned Additional Sessions Judge and filed her affidavit stating that she was the wedded were of respondent 1. The learned Additional Sessions Judge was influenced by the fact the abductee was married with respondent 1 and confirmed their interim pre-arrest bail.
3-A. The respondents suffered detention in the first case of abduction registered against them and were bailed out after the challan had been filed in the Court because the police did not require their custody any longer. Mst. Sheedan after her recovery from the custody of the respondents had been handed over to the petitioner and she lived with her grand--parents till the 16th February 1981.
4. Canvassing for the cancellation of respondents' bail the learned counsel for the petitioner contended that the respondents had repeated the commission of offence of abduction in order to destroy the evidence of the first case of abduction against them and as such were not entitled to the concession of bail. According to him even life of the girl while living with the respondents was in danger.
5. The learned counsel appearing for the State adopted the arguments advanced by the learned counsel for the petitioner and pressed for the cancellation of the respondent's bail.
6. The stand taken by the respondent was that Mst. Sheedan had been earlier betrothed to respondent 1 and as the petitioner wanted to give her in marriage to some old person she had of her own come to respondent 1 whom she had married. According to the respondents the mother's father of Mst. Sheedan was in favour of her marriage to respondent 1. The learned counsel fop -the respondents relied upon Mst. Sughran Mai v. State (PLD 1980 Lah. 386) to argue that Mst. Sheedan being over 14--years. Bad attained puberty and was competent to contract marriage with respondent 1 on the 27th August, 1980, and, therefore, the respondents could not be said to have committed any offence. He contended that even if she was presumed not to have attained puberty when she married respondent 1 she being over 15 years of age at the present moment should be deemed to have ratified her marriage.
7. It was during the period of her custody with the respondents in consequence of her first alleged abduction that she is said to have married respondent 1. She was minor at that time and being under the thumb of the respondents could not be presumed to have exercised her free consent in matter of marriage if at all it is taken to have been solemnized. The real question in issue is not her marriage to respondent 1 but her forcible abduction by the respondents and their co-accused.
Admittedly the marriage did not take place in usual way in her parents' house nor she was given the proper send of. She had no doubt been taken out of the custody of the respondents and was living with the petitioner when the second incident of the abduction took place. The respondents admitted that she was now with them. Her abduction was reported by the petitioner to the Police the same day. In these circumstances the stand taken by the respondents prima facie is not appealable to reasons. On the allegations contained in the first information report and taking the other circumstances into consideration it was not a fit case in which the learned Additionalth Sessions Judge should have granted pre-arrest bail. They were alleged to have displayed wanton highhandedness for abducting Mst. Sheedan. She being in custody of the respondents could not have deposed against them.
8. It was brought to the notice of this Court that on the basis of the statement made by Mst.
Sheedan before the learned Additional Sessions Judge and the impugned order the Prosecuting Inspector recorded opinion that no offence of abduction had been made out against the respondents. This opinion seems to have prevented the police from investigating the case further. I am afraid the opinion of the Prosecuting Inspector is based on misconception and need not be acted upon by the Police for investigating the case as usual.
9. In view of the above the bail granted to the respondents is cancelled. They will be arrested without delay.