Ghulam Qadir Khan, accused-respondent No.1 in Criminal Miscellaneous No. B.C.No.161/D of 1990, and his son Ubaidullah Khan, petitioner in Criminal Miscellaneous B. No.53/D of 1990. Are accused of Zina with Mst. Askari Zada wife of Rehman; petitioner in Criminal Miscellaneous B.C. No.161/D of 1990, about four months prior to 29-8-1989 when the matter was reported by the husband of Mst. Askari Zada aforesaid vide F.I.R. No.333, dated 29-8-1989, registered at Police Station Saddar, Bannu. The learned Sessions Judge, Bannu, granted bail before arrest to Ghulam Qadir Khan aforesaid, while concession of bail was disallowed to his son Ubaidullah by the two Courts below. Rehman, petitioner, has moved Criminal Miscellaneous B.C. No.161/D of 1990 for cancellation of pre-arrest bail allowed to Ghulam Qadir Khan, accused-respondent, by the learned Sessions Judge on 1-10- 1990. Ubaidullah Khan, accused-petitioner, has moved Criminal Miscellaneous B. No.53/D of 1990 for grant of bail. Since both these petitions are the outcome of one and the same F.I.R., these are, therefore, disposed of by this single order.
2. The prosecution case, in brief, is that Rehman complainant moved an application to the Superintendent of Police, Bannu, charging therein Ghulam Qadir Khan and his son Ubaidullah for the abduction of his wife. The charge against Ubaidullah is that he had abducted Mst. Askari Zada, wife of the complainant and mother of six children, and had taken her to Karachi. The complainant intended to lodge the report but Ghulam Qadir Khan, accused-- respondent, restrained him from doing so and promised to arrange for the return of the abductee. Since the complainant was a poor house-tenant of Ghulam Qadir Khan, therefore, he could not proceed further. After some time when Ubaidullah brought the abductee to village Datta Khel and from there to village Aimal Khel, where both the accused are alleged to have detained the abductee. Ghulam Qadir Khan accused is also alleged to have turned out of his house Rehman complainant: As stated earlier, the learned Sessions Judge granted pre-arrest bail to Ghulam Qadir Khan but bail to Ubaidullah accused was refused by the two Courts below. Hence these petitions.
3. Mr Muhammad Iqbal Khan Kundi, the learned counsel for Rehman, petitioner, in Criminal Miscellaneous B.C. No.161/D of 1990, submits that Ghulam Qadir Khan, accused-respondent, is not entitled to the extra ordinary relief of pre-arrest bail, unless he specifically alleges and satisfies the Court by-- producing evidence that his intended arrest is tainted with mala fides He further submits that even on merits the case of Ghulam Qadir Khan, accused-- respondent No.1. For anticipatory bail was not fit to be entertained, for, the common intention of both the father and the son in the abduction and in consequence thereof, the commission of the offence of Zina by Ubaidullah petitioner has been substantiated from the material placed on the record. In this context, he made pointed reference to the confessional statements of Ubaidullah, accused- petitioner, and Mst. Askari Zada abductee recorded by a Magistrate of the 1st Class, Bannu, wherein both of them have made a clean breast of their involvement in the offence with which they have been charged.
4. As against this, Mr. Muhammad Khan Khakwani, the learned counsel for the State, has opposed both the petitions and maintained that the orders granting pre-arrest bail to Ghulam Qadir Khan and declining to entertain the plea of bail raised on behalf of, Ubaidullah art; unexceptionable.
5. Mr. Khawaja Nawaz Khan, Advocate, appearing on behalf of both the accused in the two petitions defended the order of pre-arrest bail granted to Ghulam Qadir Khan and seeks bail for'
Ubaidullah petitioner on the following grounds:--
(i) that there was an unexplained delay of four months in lodging the report against the two accused; .
(ii) that grounds norm of the prosecution case, namely, the two so-called confessional statements, were inadmissible in evidence having been recorded by the Magistrate of the First Class, Bannu, and not by the Court of Session and further that confessional statements had been extracted during the period of unauthorized detention for a long period of 10 days; and
(iii) that investigation in the case is almost complete and accused---petitioner Ubaidullah was no more required for further investigation by the local police.
6. I have considered the respective contentions raised on behalf of the counsel for the parties and perused the record. There is abundant case-law for the proposition that apprehension of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a sine qua non for extending the concession of anticipatory bail. In the instant case, Ghulam Qadir Khan, accused-respondent in Criminal Miscellaneous B.C. No.161/D of 1990 has not only asserted in his application the mala fides on the part of the complainant and the police, but a bare reading of the F.I.R. Would justify such an inference. Except for the promise of the aforesaid accused-respondent No.1 to restore the custody of the abductee, there is nothing further to show that he had shared the common intention with his son Ubaidullah, petitioner in Criminal Miscellaneous B. No.53/D of 1990.
There is, thus, sufficient material on the fife to show that the charge against Ghulam Qadir Khan, accused-respondent No.1, was tainted with mala fides and had been brought about with a view to pressurise him for the restoration of the abductee. The principal accused, namely Ubaidullah, is aged about 19/20 years and does not seem to have committed the offence in connivance of his father. The concession of pre---arrest bail granted to Ghulam Qadir Khan is, therefore, unexceptionable.
7. The case of Ubaidullab, however, stands on a different footing. He has been directly charged for the abduction of a married woman and the mother of six children. The confessional statements of both the accused-petitioner and the abductee, prima facie, go a long way to connect both of them with the offence with which they have been charged. The legality and propriety of the confessional statements cannot be scrutinized at the stage of bail. It would be for the trial Court to go into these delicate questions. The delay of four months in lodging the report has been sufficiently explained in the report itself lodged by Rehman complainant-petitioner. Nonetheless, the delay, per se, in lodging the F.I.R. Is no ground for grant of bail in an offence of this nature, particularly, when both the accused and the abductee had made a clean breast of their guilt in their confessional statements. This principle proceeds on the hypothesis that there is likelihood of the prosecution to explain the delay in lodging the report at the stage of trial.
8. That being the position, there is no option but to reject both the petitions, which is ordered accordingly.
N.H.Q./1355/1