1. The applicant is facing trial under section 452/506-B/323/34, P.P.C. And section 363, P.P.C. The brief facts giving rise to the present application are that the applicant lodged report at Police Station Gulberg Central, Karachi, on 9-7-1989 which was recorded under section 452, 506-B, 323/34, P.P.C.
2. That during the investigation the applicant appeared before the A.C.M. III, Central Karachi and moved an application for bail under section 497, Cr.P.C. On 6-8-1989. However, it appears from the record that on 7-8-1989, he moved another application before the Court by which he surrendered himself before the Court, the application reads as under:-- "Surrender before Honourable Court.
3. It is respectfully submitted that my wife Mst. Sadaf who is residing separately (with her brother) handed over me the custody of my three children. (1) Muhammad Jaffar Wajidi, (2) Firdous Samer Wajidi, (3) Muhammad Ali Sikandar Wajidi. After that I went to Lahore/Murree alongwith my said children on a pleasure trip and when I came back at Karachi, I learnt that my wife Mst. Sadaf has lodged F.I.R. At Police Station Gulberg against me on the instigation of her brothers.
4. It is submitted that I am innocent and have not committed any offence. However, I hereby surrender myself before this Honourable Court.
5. Karachi (Sd.)
6. Dated 7/5-8-1989 Applicant."
7. On which the A.C.M. Passed the following orders:-- "Accused is produced before me, he is taken in custody.
8. (Sd.)
9. A.C.M. III Central 7-8-1989 09-00 hrs.
10. That the A.C.M. After hearing the defence counsel and Assistant Attorney for State granted bail to the applicant vide order, dated 7-8-1989 at 3-40 p.m. That the complainant moved an application before learned Sessions Judge, Karachi, Central, for cancellation of bail granted to the respondent No.1 but the same was dismissed vide order, dated 16-10-1989.
11. Thereafter the complainant moved this Court for cancellation of bail granted to accused/applicant vide Criminal Miscellaneous Application No.321 of 1989. After hearing the learned counsel appearing for the parties and considering the question of grant of-- bail before arrest by the learned Magistrate, the bail of the accused was cancelled by this Court vide order, dated 30-1- 1990. However, it was further observed that the respondent can apply for bail before arrest before the learned Sessions Judge, if so advised, and this order will not be a bar for moving such application.
12. The applicant moved a fresh bail application before the learned Sessions Judge for bail before arrest but the same was rejected by the learned Sessions Judge, Karachi (Central) vide order, dated 8 December, 1990, and therefore, the present application.
13. I have heard Mr. MA. Qazi, learned counsel appearing for the applicant, Mr. F.M. Javed, learned counsel appearing for the complainant, Mr. Habib Rashid, learned counsel the for the State and have gone through he documents. It was contended by Mr. MA. Qazi learned counsel appearing for the applicant, that the applicant is a respectable Medical Practitioner and the proceedings initiated against him are false and mala fide. He has further contended that there was a family dispute between the parties and the suits for dissolution of marriage filed by the complainant, - and for restitution of conjugal rights filed by the applicant are sub judice before the Court. He has further contended that even if it is presumed that the applicant had kidnapped minors Muhammad Ali Jaffar aged 7 years, baby Firdous aged 6 years and Muhammad Ali Sikandar aged 3 years, he being a father was natural guardian of the minors and no offence under section 361, P.P.C. Was made out. He has further contended that the minors are residing with their father/applicant happily, and the complainant has not filed any case before the Guardianship Court or any other Court. That all the prosecution witnesses are related and interconnected with the complainant, and therefore, the present case requires further enquiry, specially because, there were two versions of the incident.
14. I have considered the contentions and have gone through the documents. It is an admitted position that complainant Mst. Sadaf is wife of the applicant but their relations are strained and, therefore, they- have filed suits against each other, one for dissolution of marriage and the other for the restitution of conjugal rights. The three children, who are alleged to have been kidnapped by the applicant, are off-springs of their love, and the elder son namely Muhammad Ali Jaffar is aged about 7 years. The incident is alleged to have taken place on 9-7-1989 and the applicant has been on bail since then. The applicant being a father of the minors is their natural guardian.
15. In the case of Ahmed Nawaz and 3 others v. The State PLD 1968 Lah. 97; wherein it was alleged that the father had kidnapped his minor children from the custody of their mother and he was sent up under sections 361 and 363, P.P.C. An application for quashment of the proceedings under section 561-A, Cr.P.C. Was filed and it was held that:-- "Although, the mother had a right of Hizanat of her children, but the father being a legal and natural guardian, could not be prosecuted on a technical ground that he had removed the children which was not for any illegal or immoral purpose:'
16. The contention of Mr. F.M. Javed that the children were kidnapped in order to force the complainant to reside with the applicant does not appear to be correct. In view of the fact that there is litigation between the parties, their relations are strained, therefore, prima facie the possibility that the applicant was implicated mala fide could not be ruled out. The applicant has remained on bail for a long time and children are living with him happily which could be seen from their appearance when they were brought in the Court. In view of the above circumstances, it will not be appropriate at this stage to recall the order of grant of interim bail before arrest and allow the applicant to be A harassed by the police, therefore, the interim bail granted to the applicant I earlier is hereby confirmed on the same terms and conditions.
17. However, since the matter is of 1989, I direct the learned trial Court to complete the same within four months after receipt of this order and report compliance.
18. I had confirmed the above bail by a short order on 21-4-1991, and these are the reasons for the same.