RAJA SAJJAD AHMAD KHAN, J.---Through this revision petition, petitioner-complainant, seeks cancellation of pre-arrest bail allowed to accused respon dents, by Additional District Court of Criminal Jurisdiction, Dhirkot vide its order dated 08.08.2018.
2. The facts giving rise to this revision petition are that complainant lodged a report with Police Station, Dhirkot that he is resident of Sohawa. On the night falling between 11/12.07.2018 the complainant's sister namely Mst.Nazia daughter of Mohammad Aziz was sleeping in the residential house, on the next morning she was disappeared, upon which her search was made, it came to know at Mst. Nazia was enticed away by Sheraz son of Sarfraz Khan for committing Zina. One week ago, the accused Sheraz divorced the complainant's elder sister Mst. Rozia who had seven children. The accused Sheraz had been developing illicit relations with Mst. Nazia. Before leaving the said abductee took away five colas gold ornaments of complainant's wife.
3. On this report, a case vide FIR bearing No,77/2018 in offences under sections 10, 11, 19 of the Offence of Zina (Enforcement of Hadd) Act, 1985 and section 14 of the Offence against Property (Enforcement of Hadd) Act, 1985 was registered against the accused-respondents. They applied for bail before arrest before Additional Court of Criminal Jurisdiction, Dhirkot on 18.07.2018, which was allowed vide impugned order dated 08.08.2018, hence, this revision petition.
4. Sardar Rizwan Naeem, the learned Counsel for the petitioner/ complainant, submitted that accused-respondents have been nominated in the FIR, and that the complainant who is brother of Mst.Nazia had no ulterior motive to involve the accused-respondents in a false case. He further argued that accused-respondent No,1 divorced his first wife in the holy month of Ramazan on 04.06.2018 and solemnized 2nd Nikah on 12.07.2018 with the sister of his first wife without completion of Iddat period of his first wife. He further submitted that according to Sharia law second Nikah has no value rather it is a proof of criminality of the accused-respo ndents as both the respondents are guilty of immoral act, whose living together would amount to continuation of commission of Zina-bil-Raza, which offence falls within the prohibitory clause of section 497, Cr.P.C. The trial Court while allowing bail before arrest grant to them without considering these aspect, therefore, by accepting the revision petition the same may be cancelled. In support of the contention, the learned counsel referred and relied upon the following case law:- 1999 PCr .LJ 872, 2005 PCr .LJ 1816 and 2013 PLJ 1 145(sic).
5. Conversely , Sardar Naveed Hussain Azad, the learned counsel for accused-respondents Nos,1 and 2, fully defended the impugned order on all counts and submitted that written divorce was given by accused Sheraz to his first wife Mst. Rozia, on 10.04.2018 and then he contracted second marriage with respondent No,2 with her free will and consent on 12.07.2018, hence no offence has been committed by the respondents and grant of pre-arrest bail is based on cogent reasons, which is liable to be sustained. Finally he prayed for dismissal of the revision petition. In support of the arguments, the learned counsel cited following case law:- PLD 2005 Lahore 316, 2007 PCr.LJ 787, 2006 PCr .LJ 202, 2005 PCr .LJ 604, 2017 SCR 420.
6. The learned Assistant Advocate Genera l appearing on behalf of the State opposed the submissions made by the learned counsel for the accused-respondents and vigorously contended that the accused-respondents are involved in heinous of fence of committing Zina; therefore, bail allowed to them may be cancelled.
7. I have heard the learned Counsel for parties as well as the learned State Counsel and cursorily gone through the record.
8. It would be worthwhile to mention here that pre-arrest cannot be granted unless the petitioner succeeds in showing that the prosecution has been launched against him by the complainant with mala fide intention and that the Police is ought to arrest him ulterior motives of harassing and humiliating him. It is well settled that pre-arrest bail is granted only in those matters where it would appear that the registration of such cases was based on enmity , mala fide or where no of fence was shown to have been committed on the very face of record.
9. A perusal of impugned order dated 08.08.2018 passed by learned Additional District Court of Criminal Jurisdiction, Dhirkot, would reveal that learned Court below has granted pre-arrest bail to accused-respondents on the ground of further inquiry . It is now well settled that in absence of allegation of mala fide or ulterior motive on the part of Police or complainant, question of further inquiry cannot be considered in case of pre-arrest bail. Record of the case shows that accused respondent No,1 developed illicit relations with co-accused respondent No,2 (sister- in-law) during the wedlock of her sister Mst. Rozia. Thereafter , he divorced his first wife (sister of accused- respondent No,2) and by enticing away respondent No,2 solemnized 2nd Nikah with her without completion of Iddat period even though she (Mst. Rozia) was the mother of seven children of accused respondent No,1. It is pertinent to mention her that' Mst. Rozia (1st wife of accused-respondent No,1) has leveled serious allegation that due to illicit relations between accused-respondents, Mst. Nazia accused responde nt No,2 became pregnant and in such circumstances they ran away and after preparing fabricated Talaq Nama entered in Nikah on 12.07.2018.
Moreover , after obtaining pre-arrest bail the respondents did not join investigatio n, so their medical examination could not be conducted and investigation process has been frustrated.
10. From tentative assessment of the record, this Court is of prima facie view that the accused respondents are connected with the alleged commission of offence who are not entitled to the extraordinary concession of pre-arrest bail which is meant only to save innocent persons from undue harassment, humiliation and disgrace as the present accused respondents have failed to fulfill the above ingredients for the grant of such relief. Moreover , there is no cogent material to show that the complainant and police motivated with malice or ulterior motive for harassing and humiliating the respondents. Even otherwise, considerations for grant of bail before arrest and after arrest are altogether different and it is not a case of bail after arrest. Similarly , previous non-co nviction is also not a ground for the grant of pre-arrest bail.
11. Therefore, while keeping in view the allegation leveled in the FIR and other material placed before the Court, prima facie case connected the accused respondents with the commission of alleged offences, resultantly the revision petition is accepted and the ad-interim pre-arrest bail granted to accused respondents Nos,1 and 2 vide order dated 08.08.2018 by Additional District Court of Criminal Jurisdiction, Dhirkot are recalled.
12. The case law cited by the learned counsel for accused respondents are distinguishable from the facts and circumstances of the case, hence needs not to be discussed.
Before parting with the order , it may be observed that any observation in this order , being purely tentative in nature, shall in no way prejudice the proceedings before the learned trial Court where the case be decided strictly on its own merits.