Cr. Miscellaneous Nos. 7029 and 7039 of 1968 were submitted in this Court for the grant of anticipatory bail by the persons who are accused of offences under section 363/ 148 /149, P. P. C.
And who are alleged to have abducted an infant Mst. Saiqa, a girl of one year's age, from the custody of her mother Mst. Najma Begum who had gone to grave--yard to offer fatihah on the grave of her brother on the Eid day. It is alleged that in snatching away the girl, Mst. Hamida, Mst.
Irshad Begum and Zahoor Din, who were accompanying the mother, received injuries at the hands of the accused persons. They approached this Court for the anticipatory bail which was granted by my learned brother Shaukat Ali, J. The petitioners' applications for bail are before me for confirmation, while Mst. Najma Begum has moved Cr. Misc. Nos. 179 and 180 of 1969 for cancellation of bail of the accused persons. All these four applications are being disposed of by the same' order.
2. Raja Muhammad Akram learned counsel appearing on behalf of the accused persons argues that there has been a dispute between the husband and the wife and an agreement for the custody of the child was entered into by the parties on the 20 of July 1968, a photostat copy of which has been placed on the rile as Annexure `R'. This agreement was accompanied an affidavit which is also placed on the file. It is mentioned in the affidavit as well as in the agreement that Mst.
Najma Begum is suffering from T. B. And, therefore, she was not suckling the child and the custody of the child was to remain with Ashfaq Ahmad. The agreement was shown to the learned counsel appearing onbehalf of Mst. Najma Begum and he was asked to compare the signatures of Mst.
Najma Begum on this document and on her affidavit submitted in this Court. The lady denies her signatures on this agreement and the learned counsel contends that the said document is forged one. Be that as the case may be, the question is whether in the circumstances of the case, theth father accompanied by several other persons is likely to be guilty of an offence under section 363, P. P. C., for snatching away the child from the mother. Learned counsel appearing on behalf of Ashfaq Ahmad has cited Ahmad Nawaz and other`s v. The State (PLD 1968 Lah. 97) wherein S. A.
Mahmood, J. (as he then was) quashed proceedings pending against the husband for taking away three minor daughters of his from the custody of his wife under section 363, P. P. C. The earned Judge after referring to case-law on the subject, decided that the father in view of the established law, cannot be held to be guilty of the offence under section 363, P. P. C.
3. Learned counsel appearing for the State was stated that section 365, P. P. C. Was added and the accused persons not granted bail under that section. Malik Abdul Aziz, learned counsel appearing on behalf of Mst. Najma Begum, argues that the application of section 365, P. P. C. Having been concealed by the accused, a fraud has been practised on this Court in securing the anticipator, bail which should not be confirmed.
4. After hearing the learned counsel for the parties, I think that prima facie case has been made out for the con--firmation of bail granted to the accused persons in view of the Lahore; case cited above. The above observations, however, will have no bearing oil the merits of the case, which will be gone into by the competent Court. As to the allegation that the accused have not joined the investigation and have not produced the girl, they should not be allowed to remain oil bail, I direct them to join the investigation and produce the infant girl before the police, failing which the complainant would be at liberty to move an application for cancellation of their bail afresh.