Allah Dad, son of Khaliq Dad, resident of Wanda Madat, Police Station Panyala, Tehsil and District D.I.
Khan, has filed this petition under section 497(5), Cr.P.C. For cancellation of pre-arrest bail allowed to Sanaullah Khan and Abdul Hamid, sons of Haider Khan, also residents of Wanda Madat, by the learned Sessions Judge, D.I. Khan, which was later on confirmed by his order, dated 7-1-1990.
2. The prosecution case briefly stated is that Mst. Zuhra Bibi, daughter of the petitioner, lodged a report at Police Station Panyala, to the effect that on 26-11-1989 at `Khuftan Wela' she alongwith her mother, Mst. Niaz Bibi and her sister (not examined) and other womenfolk of the village were on their way to attend the marriage of one Khan of their village when the accused-respondents came and caught hold of her and forcibly took her towards Wanda Umari, where they committed Zina- bil-Jabr in the forest of `Kikkar' trees. Mst. Niaz Bibi and other womenfolk informed the inmates of the house of the occurrence and started searching for her and on the noise of the search party, the accused respondents fled away. The accused-respondents were also alleged to have taken away `Tik' (nose pin); neckless and ear-rings which the prosecutrix was wearing at the time. Motive for the offence was that Abdul Hamid, accused respondent, was expressing love for her which she used to frustrate. The delay in lodging the report was explained in the F.I.R. Itself saying that the husband of the complainant had gone out of the house for hunting but he did not turn up, so she reported the matter vide F.I.R. No.124, dated 28-11-1989.
3. Pre-arrest bail was allowed by the learned Sessions Judge on the ground `that there is a delay of two days in lodging of the F.I.R. And mala fides on the part of the complainant cannot be ruled out reasonably for she had changed her version given in the F.I.R. And the other P.Ws. Also do not categorically support her'.
4. Mr. Ghulam Hur Khan, the learned counsel for the petitioner, seeks cancellation of the bail granted to the accused-respondents, inter alia, on the following grounds:--
(i) That the learned Court below has omitted to keep in view the essential sine qua non in connection with consideration of pre-arrest bail as repeatedly laid down by the superior Courts, namely, mala fides, and ulterior motive of the charge;
(ii) that the learned Court below, in addition, failed to take notice of the abscondence of 7 days against Sanaullah and 21 days against Abdul Hamid, accused-respondents, which factor alone disentitles the respondents to the relief of bail, much less than that of pre-arrest bail; and
(iii) that the order of the learned Court below, if left intact, would amount to removing the recognised distinction between regular and pre-arrest bail as well as their respective mandatory legal requirements, and thus lead to serious consequences.
The learned counsel thus submitted that an important pre-condition viz. Mala fides was, although set up in the application, but it was neither pressed into service before the learned Sessions Judge, nor it is substantiated from the material on the record.
6. Malik Hamesh Gul Khan, the learned counsel appearing on behalf of the State, did not support the application for cancellation of bail.
7. There is abundant case-law for the proposition that the condition of arrest being for alterior motive, for example, that of humiliation and unjustified harassment is a sine qua non for pre-arrest bail. The learned counsel for the respondents was unable to satisfy me with regard to the condition of mala fides of the prosecution for the intended arrest of the accused-respondents. There is chain of authorities since 1949 and the recent trend of authorities would show that a clear distinction has been made between pre-arrest and after-arrest bail. In this context, reference may be made to:-- (1)Zia-ul-Hassan v. State PLD 1984 SC 192; (2) Laskhari v. State 1987 P Cr. L J 1333 and (3) Abdul Wahid v. Mahmood Ahmad 1989 PCr.LT 1907.
8. This is a matter of regret and I am constrained to observe that the learned Sessions Judge while dealing with the application of pre-arrest bail did not keep in mind the principles enunciated by the superior Courts in deciding application for pre-arrest bail and seems to have been unnecessarily impressed by extraneous circumstances.
9. Mere delay which was sought to be explained in the F.I.R. And bare use of the word ---mala fides--- attributed to the complainant could not be taken to be a criterion for extending pre-arrest bail in a case of this nature in which no woman would be inclined to own the disgrace of intercourse with her and thus debase herself in the eyes of her husband and the society. The observations of the learned Sessions Judge at the stage of pre-arrest bail, I am afraid, have seriously prejudiced the case of the prosecution. This shows lack of application of judicial mind and unawareness of the basic law about pre-arrest bail as distinguished from the bail after arrest on the part of the learned Sessions Judge.
10. The case of Abdul Hamid, accused-respondent is, however, distinguishable from that of Sanaullah Khan. In the case of the latter, the prosecutrix has, in her supplementary statement, exonerated him of the charge. In consequence, the pre-arrest bail granted to Sanaullah Khan is maintained. Nonetheless, the pre-arrest bail granted to Abdul Hamid, against whom a motive has been attributed as well, is cancelled. He is present in Court, taken into custody and has been sent to jail. The accused-respondent would, however, be at liberty to move the competent Court for regular bail if so advised. The Court, to which an application is made, shall decide the question of bail without being influenced by the observations made by this Court on the line of distinction that has been drawn between pre-arrest bail and after-arrest bail. The record should be sent forthwith to the competent agency for proceeding further in the case.