The captioned revision petition has been directed against impugned order of Tehsil Court of Criminal Jurisdiction, Pat'hikka Naseerabad, dated 09.07.2015, whereby post arrest bail was granted to respondent-accused.
2. The facts precisely stated are that Abdul Hameed, petitioner-complainant, lodged a report at Police Station Kahori, on 24.06.2014 at 11:45 p.m., alleging therein that few days ago his nephew Riaz s/o Said Ahmad, went Saudi Arabia for earning his livelihood, whereas his wife Mst. Saleema Bibi, alongwith two minor daughters, was living at home. On 22.06.2015, at 11:00 a.m., he went towards the home of his nephew and found that Mst. Saleema Bibi, after locking the doors of the said home, had gone somewhere else, thereupon, he started to trace her silently. During search, he received information that Shahzad, accused-Respondent No, 1, with the abetment of Saifullah and Irshad, enticing Mst. Saleema Bibi, took her with him for the purpose of committing `Zinc' with her. It was further urged that Mst. Saleema Bibi, alongwith minor daughters, be recovered and necessary proceedings may be initiated against the persons involved in the occurrence.
3. A case in offences under Sections 10, 16 & 19, ZA was registered, on the aforesaid report, at Police Station, Kahori, on 24.6.2015. After registration of case, respondent-accused was arrested, who applied for post arrest bail before Tehsil Court of Criminal Jurisdiction, Pat'hikka Naseerabad, on 6.7.2015, which was granted to him vide impugned order dated 09.07.2015. Now, petitioner- complainant has called in question the aforesaid bail granting order, dated 09.07.2015, through the captioned revision petition, which is subject matter of the instant order.
4. Mir Abdul Latif, the learned Counsel for petitioner-complainant contended that the Court below allowed bail to respondent-accused in a hasty manner. He argued that after registration of the case, one of the accused-persons, namely, Saifullah was arrested, who pointed out that Shahzad respondent-accused, took Mst. Saleema Bibi, to Karachi and thereafter, when they came back Muzaffarabad, both of them were arrested. The female accused, however, was granted bail, whereas respondent-accused Shahzad, was later on also allowed bail unlawfully on 09.07.2015. The learned Counsel agitated that the impugned order was recorded contrary to the record; therefore, the same is liable to be set-aside. He further contended that statement of Mst. Saleema Bibi, was recorded before Magistrate, wherein she implicated the respondent -accused with the commission of offence, which aspect lost consideration of the Court below. The learned Counsel stressed on the point that accused committed heinous offence of `Zina' with a married woman and while keeping in view the sanctity of our society, bail to such like culprits should have not been allowed in a routine manner. He emphasized that the learned trial Court did not apply its judicial mind while allowing bail to the respondent-accused. The learned Counsel finally submitted that by accepting the instant revision petition, bail granted to respondent -accused by the trial Court may be recalled.
5. Conversely, Mr. Muhammad Naseem Mughal, the learned Counsel for respondent-accused, vigorously contended that the trial Court did not commit any illegality while allowing bail to the accused because the record did not connect him with the commission of alleged offences. The learned Counsel contended that as per prosecution story, the respondent-accused took abductee from Muzaffarabad to Karachi, if for the sake of argument, it is considered true, even then accused is entitled to the concession of bail, because she ex-facie traveled with the accused as per her free will. He further maintained that once bail granted to an accused by the Court of competent jurisdiction requires some strong and cogent reasons for its cancellation and the same cannot be rejected unless the discretion exercised by the Court is either perverse or capricious. The learned Counsel submitted that after thorough investigation, a challan has been presented before the trial Court and respondent-accused is no more required for further investigation, hence, in these circumstances, the concession of bail granted to the accused by the Court below may not be cancelled. The learned Counsel finally craved for dismissal of revision petition.
6. Mr. Khursheed Anwar Mughal, the learned Assistant Advocate General appearing on behalf of State fully owned and supported the arguments advanced by the learned Counsel for petitioner- complainant.
7. I have heard arguments of the learned Advocates for parties and cursorily perused the available record.
8. The matter in hand pertains to cancellation of bail and it is, now, well settled principle of law that at bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the record to reach the conclusion whether in the given circumstances the respondent-accused was entitled to the concession of bail or not rather a bird eye view of the record has to be taken into consideration.
9. In the present case, allegation against Shahzad, respondent-accused, is that he enticing Mst.
Saleema Bibi, took her Karachi and forcibly committed `zinc' with her. The trial Court allowed bail to the accused on the grounds that medical report shows pregnancy test negative, no marks of violence were found on the person of victim and no recovery was required from the accused. I am alive that the matter of cancellation of bail is to be viewed from altogether a different angle than the matter of allowing bail to an accused-person and once bail granted by a Court of competent jurisdiction, cannot be recalled as a matter of routine unless it is found perverse or capricious.
However, a cursory perusal of the record reveals that Mst. Saleema Bibi, implicated respondent- accused with the alleged offences in her statement recorded under Section 164, Cr.P.C. before Magistrate, on 12.08.2015. Although, the aforesaid statement of victim was recorded after the bail order was passed by Tehsil Court of Criminal Jurisdiction, Pat'hikka Naseerabad, on 09.07.2015, however, the same can be considered while maintaining or recalling the bail order of trial Court, as she admitted in the said statement about living with accused in Karachi, who committed Zina' with her, and in such like cases where a woman admits her living with accused, the case cannot be considered fit for grant of bail. The aforesaid view finds support from a case reported as Muhammad Hussain & another v. The State [1987 PCr.LJ (Lahore) 220], wherein, it was observed as under: "In so far as Muhammad Hussain is concerned, since it is admitted by Mst. Zohra that she lived with him I do not consider it a fit case for bail to him. His petition for bail is dismissed."
10.The contention of the learned Counsel for respondent-accused that as per prosecution story, the accused took abductee from Muzaffarabad to Karachi, if for the sake of argument, it is considered true, even then he is entitled to the concession of bail, because she traveled with her free will. It would not be out of place to observe here that illicit connection between married lady and respondent-accused, who, as per statement of lady, enticed her away from her matrimonial abode for the purpose of marriage and even his case does not fall within the prohibitory clause of Section 497, Cr.P.C. .1898, it does not mean that he was entitled to be released on bail as a matter of course, because it was obligatory for the Court below to consider all the attending facts and circumstances before deciding to release such an accused on bail. The aforementioned view finds support from a case reported as Muhammad Afzal & another v. The State [1997 SCMR 2781, wherein, it was held as under: "We have heard the learned Counsel for the petitioners. He has not denied that both the alleged abductees were married women but sought to rely upon their statements recorded under Section 164 of the, Cr.P.C. to show that they had gone with the petitioners of their own free will. These statements, as rightly observed by the learned Judge, go to show that there did exist illicit connections between the two ladies and the petitioners who had enticed them away from their matrimonial abodes for immoral purpose. It appears that the learned Additional Sessions Judge when allowing bail to the petitioners was influenced by the fact that Section 16 of Ordinance VII of 1979 does not fall within the prohibitory clause of Section 497, Cr.P.C. We would like to make it clear that the mere fact that the offence of which the petitioners were accused does not fall within the prohibition contained in Section 497, Cr. P.C. does not mean that they were entitled to be released on bail as a matter of course. Learned Judge in the High Court has rightly observed that even in such cases, it is obligatory for the Court to consider all the attending facts and circumstances before deciding to release such an accused person on bail.
Keeping in view the aforesaid factual and legal position, we are not inclined to interfere with the order of the learned Judge of the High Court re-calling the orders granting bail to the petitioners.
This petition is accordingly dismissed."
11. It is pertinent to mention here that there is no denial to the moral values of Islam and our society.
It cannot be ignored that Allah Almighty has declared commission of intercourse between men and women, not united in marriage, an offence and commission of `Zino' is an offence not only against the society but also against the Hudood Allah. It may be observed here that as per prosecution story and statement of victim, respondent-accused enticing Mst. Saleema Bibi, took her Karachi and forcibly committed 'Zino' with her, who are not related with each other and Islam does not permit free association of men and women, and in such type of heinous offences, an accused is not entitled to the concession of bail. The aforesaid view is fortified from a case titled Muhammad Nusrullah v. The State [2003 P.Cr.L.J (Lahore) 19941 as follows: "We have to follow the Injunction of Islam as a whole and not in piecemeal to suit for the grant of concession. Islam even does not permit free association of men and women. It is basic principle of law that one who seeks equity must do equity and the accused involved in such type of heinous offences are not entitled to any concession. The offence against the petitioner falls within the prohibitory clause and he has failed to make out a case of further inquiry."
12. It would be relevant to observe here that the Courts should not function vacuum while exercising jurisdiction respect of grant or refusal of bail. They are bound to take note of social or oral environments prevailing in the society, therefore, if at the stage, when no evidence has been recorded by the trial Court, as yet, grant of bail would amount to encourage illicit love affairs. Thus, in such type of cases, bail cannot be allowed. The aforesaid view is fortified from a case reported as Khan Muhammad alias Muhammad Khan v. The State (1984 P Cr.L J (Lahore) 14961, wherein, it was held as under: "This Court does not function in vacuum while exercising jurisdiction in respect of the grant or refusal of bail, and I am hound to take note of social or moral environments prevailing in the society, therefore, in my view, at this stage, when as yet no evidence has been recorded by the trial Court the grant of hail would amount to encouraging illicit love affairs and fornication."
13. The accusation against respondent-accused is that he committed 'Zino.' with a married woman and in such like cases, an accused cannot be favoured with the concession of bail circumstances of the case. The aforesaid view is supported from a case titled Abdul Khaliq v. The State (PLD 1986 Peshawar 119), wherein, it was held as under: "To sum up, herein the prosecution has presently succeeded to bring evidence on record to connect the accused-respondent with the commission of an offence punishable with 10 years' imprisonment. Besides accused-respondent stands charged for an offence of `Zina' with a married lady. He cannot be favoured with the concession of bail for the prohibitory offences of the like in the circumstances of the case. His bail is, therefore, cancelled. He is taken into the custody and handed over to the police to be lodged in the judicial lock-up pending his trial."
14.After discussing the afore quoted case law, without touching merits of the instant case, I am of the humble view that respondent-accused is, prima-facie, connected with the commission of alleged offenses; thus, the trial Court committed illegality while allowing him bail at this stage, when the evidence is yet to be recorded. Therefore, in light of above detailed discussion, I am inclined to recall the concession of bail granted to respondent--accused.
15. As a sequel to what has been discussed above, the revision petition is accepted, the impugned order dated 9.07.2015, is set-aside and the bail granted to the respondent-accused by Tehsil Court of Criminal jurisdiction, Pat'hikka Naseerabad, is cancelled. He is taken into custody and handed over to the police to be lodged in judicial lockup pending his trial. It is clarified that the observations made above are of tentative assessment and will not prejudice the case of either party at the trial.