This application under subsection (5) of section 497, Cr. P. C. Seeks the --cancellation of the order dated 21st of December 1973, passed by Rao, Iqbal Ahmad Khan, Additional Sessions Judge 11, Multan, whereby he granted bail before arrest to respondents 1 to 3 who have been accused of the commission of offences under sections 354, 366 and 376, P. P. C.
2. The petitioner, Nazir Ahmad, is the husband of Mst. Khurshid Begum who is the prosecutrix in this case. The F. I. R. Was drawn up on the basis of a statement made by Mst. Khurshid Begum to S. I.
Riazur Rehman, Police Post Daulat Gate, Multan at 6-30 p.m. The contents of the F. I. R. Indicate that the prosecutrix was married to one Faiz Bakhsh who died about seven years ago. She had two daughters, namely, Mst. Azra and Mst. Zamurrad aged about 12 and 13 years respectively, and one son Daud Khan aged about 9 years from Riaz Bakhsh. Two years after the death of Faiz Bakhsh she married her present husband Nazir Ahmad from whom she has no offspring. It appears that about one year after the death of Faiz Bakhsh a dispute arose between Mst. Khurshid Begum and Mst.
Shamim a sister of Faiz Bakhsh deceased about the custody of the two daughters. Mst. Shamim took over the custody of the girls and before she went to U. K. With her husband Sadiq Khan Khakwani, she got them admitted to Gujjar Khudda Hostel. Mst. Khurshid thereafter resorted to a Guardian Court for restoration of the custody of the girls and obtained an order in her favour. The girls at the time of the incident were residing with their maternal grandfather at Dera Ismail Khan.
3. Two years before the incident, Mst. Shamim came back to Multan with her husband and started living in Gul Gasht Colony. She again revived the old dispute. It appears that a Civil Revision was pending before the Additional District Judge, Multan, and had been fixed for bearing for 12th of January 1974. Another matter is pending before the Guardian Judge at Multan. The latter Court had issued process against Mst. Khurshid Begum directing her to produce in Court the three minors on 15th of December 1973. The police after consulting the relevant files have discovered that Maqbool Hussain respondent is the counsel of Mst. Sbamim in these cases.
4. On the day of the occurrence at about 1 p.m. Mst. Khairan Bibi came to the house of the prosecutrix and told her that if she wanted to have the covers of her quilts stitched, she should accompany her to her house. The prosecutrix went to the house of Mst. Khairan where the three respon--dents along with Razzu, their co-accused were present. Mst. Khairan Bibi went to another room. The accused closed the door and Razzu asked Mst. Khurshid Begum at the point of knife to strip herself of her clothes. The accused then started drinking. Thereafter, Razzu, Maqbool Hussain, Advocate, and Zafar Shah raped her by turns. When she wanted to raise noise they put their hands on her mouth. They also obtained her signatures and thumb-marks on some Court summons.
Meanwhile, a photographer entered the room and the woman in a state of nudity was made to pose twice for photographs with Razzu who was also naked.
5. The victim found an opportunity to raise noise which attracted Said A.I, Khadim Hussain and Ghulam Hussain witnesses They knocked at the door. Mst. Khursbid Begum came out naked and was given a chaddar by Mst. Khairan Bibi to cover herself. The accused after the arrival of the witnesses made good their escape. The prosecutrix thereafter went to her house and waited for the return of her husband. She left her Camy watch and a gold ring at the spot. After the return of her husband she was proceed--ing to the police station when she happened to meet S. I. Riaz-ur- Rehman at about 6-20 p.m. In Chauk Aam Khas Bagh and made herstatement. She also produced her Shalwar which she was wearing before the commission of the offence. It was found to be stained with semen.
It may be stated that Latif Hussain respondent No. 1 is a process---server in the civil Court. He was not named 'y the prosecutrix in tile F. I. R. But she named him in her supplementary statement. Zafar Hussain Shah was a Reader in the Court of a Magistrate but I am told that now he has been enrolled as an Advocate. Respondent No. 3 is an Advocate and as stated above has been appearing as a counsel for Mst. Shamim.
The police during the investigation found two parats of summons in. The house of Mst. Khairan Bibi One related to the Court of the Additional District Judge, Multan, and the other pertained to the Court of the Guardian, Judge. The inspection of the Court files by the police revealed that then originals of these parats bore the thumb-marks and signatures of Mst. Khurshid Begum.
6. It appears from the Zimnis that a D. S. P. Was associated with the investigation from 19th of December 1973. His report dated 21st of January 1974 shows that according to his findings only Razzu had committed rape on the prosecutrix but the other three accused were involved in the conspiracy and made her to sign and thumb-mark the process of the Court by intimidating her and administering her a strong intoxicant. He was of the opinion that the three other accused in spite of the fact that they had not actually committed rape on the woman, had abetted the commission of the offence and were, therefore liable under section 114, P. P. C.
7. The witnesses cited in the F. I. R. Were examined on 12th of Decem--ber 1973, and they fully supported the prosecution story. They stated that they saw Latif Hussain accused also with registers and some process of Courts. The photographer who remained unnamed in the F.
1. R.
Voluntarily appeared before the police. He stated that the woman was unwilling and crying but he was asked to take the photograph or suffer grave con--sequences.
8. The learned Additional Sessions Judge appears to have been impress--ed by the argument of the learned counsel for the respondents that the photo--graphs of the prosecutrix with Razzu indicated that she was a woman of loose character. The order dated 21st of December 1973, confirming the bail shows that police record was produced before the Additional Sessions Judge but he does not appear to have tried to find out what was the evidence in the hands of the prosecution. The prosecutrix had given an explanation for the nude photographs. The photographer appeared before the Investigating officer on 17th of December 1974, and supported her in this respect.
9. At the hearing Mr. Shahzad Jahangir, the learned counsel for the respondents raised two preliminary objections. He said that no application under subsection (5) of section 497, Cr. P. C.
Was competent as the order had been passed by the learned Additional Sessions Judge under section 498 and not under section 497 of Criminal Procedure Code. His second contention was that Nazir Ahmad having no direct connection with the case, was only a private person and it was not open to a private person to move for cancella--petition of bail. In support of the first contention he cited Ahmad and others v. Crown (PLD 1950 Lah. 280and The Crown v. Abdul Haq and another (PLD 1951 Bal. 48It was held in the first case by a Division Bench of the Lahore High Court that when an order is passed by a Sessions Judge under section 498, Cr. P. C. He had no powers to cancel it and the High Court could cancel the same only under its revisional powers. It was further observed that an order of bail passed by the High Court itself could be set aside only under section 561-A, Cr. P. C.
To the' same effect were the findings in the Baluchistan case, referred to above. The dictum in Ahmad and others v. The Crown (PLD 1950 Lah. 280) was held to be not good law in Gushtasab Khan v. The Crown PLD 1956 FC 117). Their Lordships of the Federal Court placed their reliance on the case of Jairam Das v. Tmperor (AIR 1945 P C 94). It was held by the Privy Council in the last mentioned case that Chapter XXXIX of' the Code of Criminal Procedure read with section 436 of the same Code was-, a complete Code for grant of bail and governed all variety of cases. The' Federal Court held that the power conferred on the High Courts and the Courts of Session by the later portion of section 498, Cr. P. C. Was in the nature of corollary or rider to the power conferred on Courts in general by section 497, Cr. P. C. In other words, a High Court or a Court of Session when it takes action to grant bail acts under section 496 or 497, read with section 498 and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier sections.
10. The Chief Court of Sind had earlier taken the same view in Karim Bakhsh Jatoi v. Crown (PLD 1952 Sind 43In that case bail had been granted by the Assis--tant Sessions Judge but was cancelled by the Sessions Judge of Larkana. An argument was raised that power under subsection
(5) of section 497, Cr. P. C. Was not available to the learned Sessions Judge for cancellation of bail.
The contention was repelled. The following observation by Tyabji, C. J. May be---quoted with advantage:------ "For the reasons stated above I am of the view that whenever a person accused of a non-bailable offence is admitted to bail, the release on bail, whether it be by the police, by a Magistrate, by the Sessions Court or by the High Court, must necessarily be a release under this section "within the meaning of clause (5) of section 497, and in every such case bail can be cancelled under the provisions of that clause. The order of the Assistant Sessions Judge in this case was therefore not without jurisdiction, and as the order was also not otherwise, improper I would reject this application."
Constantine, J. Agreed that the words "under this section" in subsec--petition (5) of section 497, Cr.
P. C. Bear the meaning "in non-bailable cases", and have not been used to exclude cases where the High Court or the Court of Session had acted under section 498 in releasing an accused person on bail.
11. Even if the contention raised by the learned counsel had some sub--stance, there is no bar against the High Court to set aside an order of grant of bail by a Magistrate or a Sessions Judge in exercise of its revisional powers under section 439, Cr. P. C.
12. The second preliminary objection has also no substance. Sub--section (5) of section 497, Cr. P.
C. Does not say in terms that only an interest--ed person can move the Court for cancellation of bail. Of course, in cogniz--able cases it is the duty of the Public Prosecutor to be vigilant and to move for cancellation of bail if be thinks that the order is erroneous and unsustain--able. The learned counsel in support of his contention relied on Devilal v. Ganpat (AIR 1951 R.I. 94.). In this case, the High Court had found that the Sessions, Judge had granted bail to the accused in proper exercise of powers under sec--petition 498, Cr. P. C. One of the factors which influenced the decision of the learned Single Judge was that the State had not thought it fit to come in :revision against the order of the Sessions Judge. It was observed:- "It may be that in exceptional cases a revision by a private party might also be entertained but I do not find any such grounds in the present case."
So, the judgment relied upon by the learned counsel does not exclude the possibility of a private party moving the High Court for cancellation of bail. Nazir Ahmad petitioner is in my view a person vitally interested in the case. Apart from the fact that he is a witness of motive, he is the hus--band of the woman who is said to have been assaulted and dishonoured.
13. The learned counsel next argued that the name of Zafar Hussain, ,respondent No. 2 had not been mentioned by the prosecutrix and that the D. S. P. Having found that none of the respondents had committed rape, the bail order should continue, especially when it had not been proved that the respondents had committed any act in violation of the privilege of bail granted to them. It is true that the name of Zafar Hussain was not men--tioned by the prosecutrix but her supplementary statement and the statements of all the eye-witnesses clearly involve him. There is evidence to show that Zafar Hussain was entrusted with the service of the summons which were got thumb-marked by the prosecutrix in the house of Mst. Khairan Bibi when she was stripped naked and was criminally assaulted. Even if the evidence showed that War Hussain was not personally present, the fact that he had been entrusted with the service of summons, copies of which were left at the venue of the crime, would definitely point towards his inculpability.
14. As to the other two respondents, the D. S. P. Found that they had not committed rape on Mst.
Kbursh:d. This is a matter of opinion by an Investigating Officer and is entitled to consideration in its own place. The D. S. P., however, equally involves the respondents in the commission of the, offence, except, so far as the commission of the rape is concerned. His report does not exculpate them. It is on the basis of his report that so far as the charge of rape is concerned, the respondents have been charged withabetment.
15. In my view, the learned Sessions Judge did not exercise his discre--tionary powers in a proper manner in this serious case. The woman had clearly said that she had been stripped naked and was forced on the point of knife to pose for the photographs. The investigation clearly supports her assertion. The police record was before the learned Judge but he does not appear to have made any attempt to find out what the evidence was. It is to be pointed out that the respondents had approached the Sessions Court for grant of bail before arrest which is an exceptional measure and is intended,-- only to protect innocent citizens from harassment and malicious prosecution. Where such grave charges have been levelled against accused persons and there is evidence in support of the charges it will be a bad exercise of discretion to grant them bail before arrest.
16. The result is that I set aside the order of the learned Additional Sessions Judge dated 21st of December 1973, and cancel the bail granted to respondents 1 to 3. They shall surrender to their bail bonds. The S. P. Shall send a report to this Court within ten days as to whether the respondents have or have not been arrested. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.