KHALIL-UR-REHAMN RAMDAY, J.-Makhdoom Jala. Respondent stands accused of having enticed away Mst. Mumtaz, a married daughter of Nawaz petitioner and of the commission of Zina with her.
This is vide F.I.R. No.147 dated 25.12.1989 of P.S Ahmedpur Sayal of District Jhang recorded for the alleged commission of offences punishable under sections 10 and I6 of Ordinance VII of 1979.
2. Having remained at large for over three months, Makhdoom respondent petitioned the learned Sessions Judge at Jhang for his admission to pre-arrest bail.
3. It had been submitted on his behalf that there was an inordinate delay of one day in lodging the F.I.R.; that six persons accused of this case including Makhdoom accused had been declared innocent by the I.O.; that the I.O had not arrested Mst. Najjo co-accused; that Mst. Mumtaz, the alleged abductee, had filed a suit for dissolution of marriage against her husband which was pending adjudication;; that the alleged abductee had appeared before a Magistrate on 24.12.1989 and had prayed for being lodged in Dar-Ul-Amaan at Lahore where she is so lodged ever since; that the alleged abductee had not been recovered from Makhdoom Jalal accused and finally that the said accused had joined Lie investigation and was no longer required by the police.
4. The learned Sessions Judge noticed all these submissions in para 3 of his order dated 4.4.1990 and reject them by observing that the said accused was named in the F.I.R; that he was alleged to have developed illicit relations with Mst. Mumtaz Bibi and had, with the help of his co-accused, enticed her away with the intention of committing Zina with her; that the High Court had dismissed the pre-arrest bail plea of Mst. Mumtaz Bibi; that the Chemical Examiner's report with respect to the vaginal swa bs of Mst. Mumtaz Bibi was positive; that the allegation of Zina stand attributed to the accused; that he had not been declared innocent by the I.O. And that in the circumstances, the case of this accused person was not fit for grant of pre-arrest bail.
5. Within fourteen days of the dismissal of this pre-arrest bail petition, Makhdoom accused made a fresh petition to the learned Sessions Judge, this time for his release on bail after arrest.
6. As would appear from paras 3 and 5 of the bail granting order dated 25.4.1990 of the learned S.J., the submissions made in this petition were the same as made in the earlier petition; the learned Judge was the same who had earlier rejected these submissions but the conclusions drawn by the same learned Judge for the same submissions this time were, however, different. The result was that Makhdoom respondent was released on bail after arrest with a finding that now his case was one of further inquiry.
7. Such a conduct on the part of the learned SJ. Is open to serious exceptions.
8. It is true that the earlier order of the learned S J. Had been passed in a pre-arrest bail petition and the subsequent order was made on a post-arrest bail application but this is no ground for a judicial officer to take an absolutely different view of facts in complete ignorance and deviation of his earlier views on the subject.
9. The law and justice favour consistency and abhore fluctuating and osculating minds.
10. The considerations for grant of a pre-arrest bail are the satisfaction of the requirements of post arrest bail as envisaged by section 497 Cr.P.C, plus the satisfaction that the case is motivated by malice.
11. It is understandable for a Court to dismiss a pre-arrest bail plea on the ground that though there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence and there are sufficient grounds for further inquiry into his guilt yet the registration of the case in question did . Disclose any malafides. In such a situation, it would of course be open to the Court to release the accused on bail at any time after his arrest because absence of malafides is no ground to refuse a post-arrest bail plea.
12. But where a court bad declined pre-arrest bail not on account of absence of malafides but on the merits of the case, it will be against all norms of justice and propriety of the Courts were allowed to take a complete summer-sault on facts and to release an accused person on bail by taking refuge under the sole pretext that the case was now one of post arrest bail.
13. Such a practice on the part of the Courts has never been countenanced by the Superior Courts and has always been deprecated.
14. The discretion exercised by the learned Sessions Judge, Jhang, in releasing the respondent on bail after arrest only three weeks after having dismissed his pre-arrest bail plea on the merits of the case, is an exercise of power which is ill-based on facts, in propriety and in law.
15. The respondent is named in the FIR as the person primarily responsible for enticing away a married daughter of the petitioner complainant. He has no explanation to offer for his implication in the case if he was not the culprit, other than the submission that it is not for him to say why he had been involved as it was for the prosecution to prove its own case.
16. Mst. Mumtaz Bibi having left her father's house in Jhang appeared before a learned Magistrate at Ferozewala and prayed for being lodged in DARUL AMAAN. The prayer was allowed.
17. While at DARUL AMAAN, she sought her release on bail before arrest and I had declined to exercise my discretion in her favour when she had informed me that she would not be prepared to live with her father or with any other person falling within her prohibited degree in case of her release on bail.
18. Mst. Mumtaz is thus herself a co-accused of the present respondent. To say that the case of Makhdoom respondent was one of further inquiry because Mst. Mumtaz had not deposed against her, is not a reasonable finding.
19. Having considered all aspects of this case, I would accept this petition and re-call the to Makhdoom Jalal respondent through an order dated 25.4,1990 of the learned Sessions Judge of Jhang.
20. He shall be taken into custody forthwith.
A copy of this order shall be sent to the learned Sessions Judge of Jhang.