1. Petitioners, a male and a female, claiming to be wedded in marriage but accused of offences under section 10/11 of Ordinance VII of 1979, claimed under section 497, Cr.P.C. Bail after jail. They were arrested on 10-12-1991, after an order giving them bail before jail was recalled by my learned brother Falak Sher, J. After arrest, they applied for bail in the lower Court. It was dismissed on 21-12- 1991 by learned Additional Sessions Judge, Rawalpindi. He observed:-- "I have heard the arguments and gone through the record. The bail granted to the petitioners was cancelled by the honourable High Court vide order dated 10-12-1991. It was held in PLD 1976 Lah. 21 that Sessions Court was not competent to grant bail one the High Court had exhausted its powers by passing order on application for bail before arrest. The same principle was held in PLD 1976 Lah.185 and NLR 1991 Cr. L J 26. In view of the principles laid down in these authorities, I am of the opinion that this Court is not competent to grant bail to the petitioners."
2. After denial of relief by the lower Court, they have approached this Court for a similar relief.
3. Mst. Hajran Bibi was an unmarried girl of 19 years. She is a little educated also. She is real sister of Arshad Mehmood complainant. Her father is abroad. Shahid Iqbal is a Tailor by profession. He worked in the tailoring house run by a cousin of Mst. Hajran Bibi and Arshad Mehmood known as Bilal Tailoring House in Allahabad (Chuhar Harpal) Rawalpindi. Employment in the Tailoring House gave Shahid Iqbal a chance to develop intimacy with the family members of Arshad Mehmood and a fancy for Mst. Hajran Bibi. At 8-30 a.m. On 18-9-1991, Shahid Iqbal managed to take with him Mst. Hajran Bibi with an intent to commit Zina with her as was stated to the police in the report lodged with them by Arshad Mehmood on 22-9-1991. On his statement, a case under section 11 of Ordinance VII of 1979 was registered at Police Station Westridge, Rawalpindi against Shahid Iqbal.
4. They married together on 18-9-1991. On the basis of voluntary Nikah, they approached the Sessions Court for bail to avoid their arrest by the police. Learned Additional Sessions Judge to whose file the bail petition was transferred, gave pre-arrest bail to the accused on 30-10-1991. His conclusions are found in the last but one paragraph of his judgment. Since it has a reference to the merits it may be referred to. 1t reads:-- "I have heard the arguments and perused the record. The Nikahnama, the affidavit and the statement of the abductee recorded under section 164, Cr.P.C. Shows that the petitioners have contracted a marriage with each other. On the previous date the learned D.DA. Had pointed out that according to his information the abductee was pregnant. On his request the I.O. Was directed to get Mst. Hajran medically examined to determine as to whether she was pregnant or not. It has now been admitted by the learned D.D.A. That according to the medical report the abductee has not been found pregnant. No doubt Nazir Ahmad and Syed Ifzal who are the witnesses of Nikah have sworn affidavits against the petitioners, but these affidavits do wok render the marriage of the petitioners invalid as according to the statement of the Nikah Khawan recorded under section 161, Cr.P.C. By the police the marriage was contracted between the parties on 18-9-1991. A mere fact that there is no malice on the part of the police or the complainant against the petitioners, does in no way lead to the presumption that the petitioners have not contracted a valid marriage. Pre- arrest trail was allowed to the accused in similar circumstances in the cases reported in 1988 P Cr. L J page 805 Kar. And 1983 P Cr. L J p. 1571 Lah. And NLR 1984 Criminal p.
60. From the material placed on the file it appears that the petitioners have contracted a valid marriage with each other. It is nowhere alleged by the prosecution that Mst. Hajran petitioner is a minor girl. She being a major girl is competent to contract marriage of her free consent. In these circumstances I am of the opinion that the arrest of the petitioners by the police is tainted with mala fides. If at all it is established that the petitioners have forged a Nikahnama they can be proceeded under the relevant provisions of law but not under section 10/11 Offence of Zina Ordinance, 1979."
5. Upon these observations, learned Additional Sessions Judge confirmed bail before arrest to the accused. Against his order, complainant of the case applied to High Court for cancellation of pre- arrest bail to the accused in Cr.M.No.658-B of 1991. It came up before my learned brother Falak Sher, J. His Lordship recalled bail order by observing:-- "Learned Additional Sessions Judge, Rawalpindi vide the impugned order, dated 30-10-1991 has allowed pre-arrest bail to Shahid Iqbal and Mst. Hajran Bibi respondents 1 and 2 respectively in the case registered vide F.I.R. No.252 of 22-9-1991 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Westridge, Rawalpindi (alleging that respondent No.1 being a worker of complainant's invalid maternal cousin's tailoring shop, had an access to his family members and abusing the privilege on 18-9-1991 around 8-30 p.m., abducted his younger sister respondent No.2 for illicit fornication) primarily on the ground of having entered into matrimony; cancellation whereof is presently being sought urging bi-fold contentions viz. The essential pre-requisite for the grant of pre-- arrest bail viz. Mala fide of the prosecution is lacking and both the alleged witnesses of the Nikah namely Syed Ifzal Asghar Kirmani and Nazir Ahmad through sworn affidavits have pleaded ignorance thereof, during the course of hearing whereof, learned counsel for the respondents despite the query could not spell out any mala fide of the prosecution being the sine qua non for the grant of pre-arrest bail which resulted into miscarriage of justice: consequently, the impugned order is set aside and the respondent's bail is hereby recalled."
6. As said above, after the order of the High Court, the accused were taken in custody by the police.
7. On 11-12-1991, police produced them before Illaqa Magistrate for a physical remand. Magistrate refused to remand the accused to police custody. Instead, they were remanded to judicial custody.
8. Against the order of the Magistrate refusing police custody, State filed a revision petition. It came up before a learned Additional Sessions Judge, Rawalpindi, who dismissed it on 27-12-1991. Against the revisional order, Arshad Mehmood file& a petition (Cr. M.3-Q of 1992) under section 561-A, Cr.P.C. For directing remand of the accused to police custody for facilitating a fair investigation of the case. It was also dismissed on 14-12-1991. In para 4 of the order of the learned Additional Sessions Judge, dated 21-12-1991, it finds mention that the witnesses of marriage namely Syed Ifzal Hussain and Muhammad Saleem were present in his Court. They gave affidavits to the effect that the marriage of the accused was solemnized in their presence and it was on this ground that physical remand to the police was denied by the Magistrate. This was much after the order of recall of bail before arrest by the High Court in Cr. M. No.658-13/91. In the earlier round of investigation, the police investigating the offence had found the marriage and Nikahnama genuine and recommended for cancellation of the case on 6-11-1991. However, before that event could take place, the investigation was transferred to the C.I.A. And they have found the case triable by a Court of competent jurisdiction. Investigation is now complete and challan is likely to be filed in the near future.
9. Under an order of the Court passed on 15-1-1992, the date fixed for hearing of the bail petition, accused Mst. Hajran Bibi and Shahid Iqbal were summoned to appear in Court. Consequently, Superintendent Adiala Jail caused their presence in custody in Court. Upon inquiry both subscribed to and accepted their marriage without duress on pursuasion from any outside quarter. At the hearing, Shahid Iqbal agreed to raise the. Dower of Mst. Hajran Bibi to Rs.50,000, instead of Rs.10,000 fixed at the time of their Nikah. Statement of Shahid Iqbal was recorded in Court and has been signed by him. Not only the parties to the marriage, but two witnesses to the marriage had sworn affidavits to support it. In Court also, the accused admitted that they were married to each other.
10. There is a Nikahnama in support of the marriage also. It is true that at one stage, the witnesses to the marriage waivered but again sided on the side of the marriage of the accused. The accused are majors. There was no impediment for their lawful marriage. On existing records, they had a good case for bail after arrest. Withholding bail from them and their lodgment in jail shall not be a proper step in the direction of cause of justice. Apart from opposing bail on merits, the complainant's learned counsel heavily relied upon the case of the State through Advocate General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 and argued that the petition though for bail after arrest must be placed before the same honourable Judge who had earlier dealt with it and recalled the bail order: I have given my earnest and careful consideration to the argument of learned counsel for the complainant. There is no doubt whatsoever, that the principles regulating grant or refusal of bail before arrest were different from those governing the bail after arrest. Tenor of the order of my learned brother laid emphasis on absence of mala fides which were a consideration sine qua non in the matter of bail before arrest but that consideration was certainly not much relevant in the case of bail after arrest which must proceed on its own merits. It was on this consideration that I decided to hear the bail petition myself, instead of despatching it to the principal seat for being placed before my learned brother who after working at the Bench for six weeks had resumed functions there. Additionally, inconvenience and expense; involved in the process was another consideration for me, to hear the petition at the Bench. In view of the facts and circumstances outlined above, I feel a case for further inquiry was sufficiently made out for the accused to get bail after arrest from the Court. Consequently, by allowing their petition, they (Shahid Iqbal and Mst. Hajran Bibi) are admitted to bail in the sum of Rs.50,000 (Rupees fifty thousands) each with two sureties each of the like amount to the satisfaction of A.C. City/Duty Magistrate, Rawalpindi.
11. Records be returned.
12. N.H.Q./S-150/L