' This petition for grant of pre-arrest bail has been filed by Mst. Nusrat Parveen, Shahid Pervaiz, Mst.
Sakina Bibi and Khalid Javaid in a case under section 16/11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered at Police Station Gwalmandi, Lahore vide F.I.R. No, 197/84, dated 23-4-1984. The aforementioned case was registered on a written complaint of Muhammad Ali son of Nabi Bakhsh, father of Nusrat Parveen petitioner No,1 addressed to S.S.P., Lahore. The complainant alleged in his application that his daughter Mst. Nusrat Parveen and another girl Mst.
Sakina Bibi whom he described as {{URDU TEXT}}were taking three years' Nursing Course in Mayo Hospital which they had completed and they were residing in the Nursing Hospital. On 21-4-1984, he received a letter from Nursing Superintendent informing him that his daughter was absent. He reached Lahore and came to know that Shahid Pervaiz and Khalid Javaid petitioners Nos. 2 and 4 alongwith Javaid Rizvi and Mst. Saeeda had abducted Mst. Nusrat Parveen and Mst. Sakina Bibi aforementioned on 25-3-1984 and had taken them away to Bahawalpur with intent to commit Zina-bil-jabar with them and to marry them against their will. It was further alleged that the abductees were being kept in Bahawalpur Victoria Hospital where Mst. Saeeda aforesaid was posted as Sister-tutor and that the accused were committing Zina-bil-jabar with them.
2. On account of the registration of the aforementioned case, petitioners apprehending their arrest moved this application for the grant of bail before arrest directly in this Court which was entertained for the reason that Writ Petition No, 1818/84 filed by Mst. Nusrat Parveen seeking the quashment of the aforesaid F.I.R. And consequential proceedings was pending in this Court (which writ petition has since been disposed of on 9-5-1984).
3. I have heard learned counsel for the petitioners as also the State and the complainant. Arshad Hussain A.S.I, the Investigating Officer present with record has also been heard. It may be pertinently stated that the question as to whether prosecution could get Mst. Sakina Bibi medically examined against her will remained under discussion on some dates of hearing and the learned counsel for the parties have been seeking adjournments to examine the legal position in this behalf. However, A.S.I. Has stated today that so far Mst. Nusrat Parveen and Mst. Sakina Bibi petitioners Nos. 1 and 3 herein are not accused in this case and he does not want to arrest them. In view of this statement of the Investigating Officer, application as regards these two petitioners have become infructuous and is disposed of accordingly.
4. As regards Shahid Pervaiz and Khalid Javaid petitioners Nos. 2 and 4, it is contended by their learned counsel that they have committed no offence under Ordinance VII of 1979 in so far as Mst.
Nusrat Parveen who is an educated girl of about 22/23 years of age has married Shahid Pervaiz petitioner of her own free will and accord and without pressure or coercion. In support of his contention that Shahid Pervaiz had lawfully married Mst. Nusrat Parveen, learned counsel has relied upon a Nikahnama placed on record which shows that Shahid Pervaiz and Mst. Nusrat Parveen married each other and their Nikah was performed at Bahawalpur on 14-4-1984 in the presence of the witnesses. Factum of this marriage has not been disputed by the prosecution. In fact, I have asked the Investigating Officer whether he has recorded the statement of Nikahkhawan and examined the witnesses of the Nikah and his reply is that he has not done it so far and he further states that the genuineness/authenticity of the Nikahnama is not in question. Learned counsel for the petitioners has also placed on record statements of Mst. Nusrat Parveen and Mst. Sakina Bibi recorded under section 164, Cr.P.C. Learned counsel contends that Mst. Nusrat Parveen in her statement under section 164, Cr.P.C. Has stated in categoric terms that she married Shahid Pervaiz of her own free will and that nobody has abducted her. He has, therefore, argued that this is a case of marriage lawfully and voluntarily contracted by the parties who are sui juris and the complainant who naturally was offended with the marriage of his daughter against his wishes initiated false criminal case with a view to harass and humiliate the petitioners. Learned counsel further submits that the prosecution has not placed any material on record showing the involvement of Khalid Javaid petitioner No,4 in any offence of abduction or Zina-bil-jabr except for bald allegation in the F.I.R. Made in vague and general terms that the accused were committing Zina-bil-jabr. Learned counsel has further pointed out that Khalid Javaid petitioner is cousin (paternal-aunt's son) of Shahid Pervaiz petitioner and that his sister is also married to a brother of Shahid Pervaiz and that he is also a witness of Nikahnama and it is for these reasons that he has been falsely implicated in the case.
5. Learned counsel for the State and for the complainant have not seriously contested the contentions of the petitioners' counsel on merits in so far as it is not denied that Shahid Pervaiz petitioner has married Mst. Nusrat Parveen who is 22/23 years old. Genuineness of the Nikahnama evidencing the marriage between them has also not been questioned. Investigating Officer present in Court has also frankly conceded that he does not require the persons of these two petitioners for investigation. Learned counsel for the complainant who is not present today but has been appearing on previous dates of hearing vehemently opposed petitioners' application on two grounds. His first objection was that the petitioners have not moved the learned Sessions Court before approaching this Court and as such their application filed directly in this Court merits dismissal on this short ground. His next submission was that 'necessary conditions' warranting the grant of pre-arrest bail as laid down in precedent law do not exist in this case. His precise submission in this behalf was that jurisdiction to allow pre-arrest bail under section 498, Cr.P.C. Can only be exercised if circumstances show that an accused is involved in the case on account of political considerations or for other ulterior motives. Reliance was placed on Murad v. Fazal-e- Subhan and another PLD 1983 SC 82.
6 As regards the first submission raised by the learned counsel for the complainant, suffice it to observe that as indicated in para. 2 above, writ petition filed by Mst. Nusrat Parveen seeking the quashment of this case on the ground that she had of her own accord lawfully married Shahid Pervaiz and a false case was registered at the instance of her father, was pending when the present application for bail was filed and it was for this reason that this application moved directly in this Court was entertained. Similar objection raised by the learned Assistant Advocate-General was thoroughly examined in all its aspects by Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) in Sh. Zahoor Ahmad v. The State PLD 1974 Lah.
256. The learned Judge after surveying the case-law on the point and taking note of thei recent trend followed by this Court expressed the view:- "That a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circumstances, in which petitions might directly be entertained in the High Court, would depend upon several factors which might be of general type or those relating to a particular case."
One such factor visualized by the learned Judge may be reproduced in his Lordhsip's own words.
"Where the High Court has earlier dealt with any matter which has direct relevancy to the subject- matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction."
Thus, the pendency of the aforesaid writ petition having direct relevancy to the subject-matter of the present case was a special circumstance in view of which this bail petition moved directly in this Court was rightly entertained. In this view of the matter, objection raised by the learned counsel for the complainant has no merit.
7. Second submission of the learned counsel for the complainant does not merit any serious consideration on the peculiar facts and circumstances of this case, some of which may be highlighted hereunder:-
(i) Prosecution is not seriously challenging the factum of marriage between Shahid Pervaiz petitioner and Mst. Nusrat Parveen the alleged abductee.
(ii) Genuineness/authenticity of Nikahnama placed on record by the petitioners has not been questioned by the prosecution.
(iii) Prosecution has not so far collected any evidence nor has any material been placed on record to show that the petitioners have been committing Zina.
(iv) Statement made by the Investigating Officer that he does not require' the persons of the present petitioners for investigation purposes.
' Even otherwise, I am satisfied that on the facts aforementioned, arrest of the petitioners shall not serve any lawful purpose and in case petitioners are not allowed pre-arrest bail, this would only result in their humiliation and harassment which in the peculiar circumstances ' of this case may be unjustified. Reference may usefully be made to the following observations in the aforementioned Supreme Court judgment relied upon by the learned counsel for the complainant:- "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a necessary condition for pre-arrest bail."
8. In view of what has been stated above, I find it a fit case for the grant of pre-arrest bail. That being so, interim bail already allowed to Shahid Pervaiz and Khalid Javaid petitioners Nos. 2 and 4 is hereby confirmed. Petitioners are, however, directed to join the investigation if and when required and summoned by the police.
Interim .