1. Leave to appeal was granted in this appeal for cancellation of bail in a case of Zina instituted under the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) to examine the following contentions: "that Naseebuddin (respondent accused) had not surrendered to the police nor he appeared before the Court seeking pre-arrest bail; that the order of learned Additional Sessions Judge, Sheikhupura, dated 20th October 1983 therefore, is exceptionable qua the said respondent; and that in the aforesaid order, dated 20th October 1983 the cases of the females only have been discussed but no reference has been made to Naseebuddin respondent and, therefore, the impugned order of the High Court suffers from this infirmity as well."
2. Learned counsel for the appellant while elaborating the points noted in the leave granting order has raised to-fold contentions: one, that Naseebuddin respondent having absconded for about 5 months, his case was covered by the judgment of this Court in Muhammad Sadiq v. Sediq and others PLD 1985 SC 182, therefore, he was not entitled to bail; and Two, that the order whereby he was granted bail indicated as if his plea for bail was not examined rind thus he was not allowed bail; the suggestion being that his name might have been added through a forgery in the bail orders.
3. After hearing the learned counsel at some length we have not been able to discover any material on the present record to support the suggestion of the learned counsel that Naseebuddin's name in the bail orders was added by way of interpolation and that he was not allowed bail by conscious application of mind. On the contrary the relevant order in so far as its contents go, indicates otherwise.
4. The main argument of the learned counsel regarding abscondence of Naseebuddin also after deeper scrutiny has been found to be of no force. After the registration of the case by the police against Naseebuddin and others at the instance of Sultan the father of the alleged abductee, the police, it appears was not keen to arrest Naseebuddin for reasons best known to it--though the suggestion of the learned counsel for the appellant is that at some stage some police officer was siding with the, accused party. That is why the investigating police had also made a recommendation for the cancellation of the case. This circumstance coupled with the further fact that both Sultan and the alleged abductee had made statements on oath in Court, as stated by the learned counsel fully supporting the accused side; would amply show that during all this period Naseebuddin despite being available to the police, was not arrested. It would be anomalous to expect that the investigating officer who recommends for the cancellation of the case would be keen to arrest the accused. The argument of the learned counsel in this behalf that the subsequent appearance of Sultan the original complainant before the higher police officers allegedly, disowning his aforesaid statement made on oath in Court had changed the position, would not make any difference in so far as the question of abscondence is concerned. In this connection it cannot be ignored that Suleman the present appellant who claims to be the husband of the ebductee had filed a formal complaint in the trial Court wherein in addition to the other accused he, according to the learned counsel, also implicated Sultan the first complainant before the police.
5. This complaint as stated by the learned counsel, was lodged on 5th of August, 1983. The accused were summoned by order, dated 16-8-1983 and it was on account of this order that the accused presented an application for bail before arrest on refusal whereof they were put under custody on 30th of August 1983.
6. In the light of all these circumstances we are not satisfied that Naseebuddin respondent had intentionally absconded. His case, therefore, is not covered by the rule relied upon by the learned counsel in the case of Muhammad Sadiq PLD 1985 SC 182. Instead it would be covered by one of the exceptions to the rule of noticeable abscondence being a bar to the grant of bail noted in Awal Gul v. Zawar Khan etc. PLJ 1985 SC 191. While cancelling the bail granted to some of the accused in that case, the Court refused to cancel the bail granted to to of the accused therein on the assumption that the police was slack or in other words was not keen to arrest the said to accused.
7. On merits it would suffice to observe that both the father of the alleged abductee and Mst. Hajran Bibi the alleged abductee herself made statements on oath on .15-6-1983 before the Additional Sessions Judge asserting that she was "not abducted by any one and neither anybody had committed adultery with her''. It would not be proper to make any further comment in this behalf as it might prejudice the case of one or the other party during the trial.
8. After hearing the learned counsel on relevant points, in the circumstances, we do not consider it a fit case for cancellation of bail. The appeal accordingly is dismissed.