' Since both these applications filed under section 498, Cr.P.C. Seeking re-arrest bail have arisen out of Crime No,80 of 1992, Gulberg Police Station under section 360/361/363/120/34, P.P.C. They are being disposed of by consolidated order. On 16-3-1992 applicants Abdul Hai Siddiqui, Akhlaque Ahmad Khan and Muhammad Haroon Siddiqui (BA No,218 of 1992) were granted pre-arrest bail in the sum of Rs,25,000 each with P.R. Bond in the like amount and they continue to be on bail till this day. Likewise applicant Iqbal Muhammad Saeed (BA. No,245 of 1992) was granted interim pre- arrest bail on 8-4-1992 in the aforesaid amount and he continues to be on bail till today.
2. Complainant Mst. Farea Razi was married with Zeshan Muhammad Siddiqui, the main accused in this case and out of this wedlock Yameena, female child now aged about 8 years was born. The relations between the parties were, however, not cordial and the marriage was dissolved under the orders of the Court. The prayer of Zeeshan Muhammad Siddiqui for obtaining the custody of Yameena under section 25 of the Guardian and Wards Act 1890, also failed. The parties, however, entered into compromise before this Court in C.P. No,S-51 of 1989, on the following terms and conditions:-- "The parties abovenamed have settled their dispute in the petition and have come to the following terms:-
(1) That the respondent No,1 shall inform the petitioner fifteen days in advance regarding his proposed visit to Pakistan.
(2) That the respondent No,1 shall not withdraw the American Passport of the minor, namely, Yameena which he has already deposited in the trial Court in terms of the order of the 1st Appellate Court dated 25-7-1989.
(3) That the respondent No,1 on his each visit to Pakistan shall deposit his current American Passport alongwith a sum of Rs,1,00,000 by way of security with the Nazir of this Court for not taking away the minor out of Karachi.
(4) 'That the respondent No,1 on the conclusion of his each trip to Pakistan, shall be entitled to take back his American Passport, and also amount of security deposited by him with the Nazir of this Court at the time of his going away out of Pakistan.
(5) That the respondent No,1 shall pay Rs,2,500 per month by way of maintenance henceforth and for the past maintenance he will pay Rs,75,000 to the petitioner.
(6) That on the fulfilment of the above conditions, the respondent No,1 shall be entitled to take the minor to his residence from 10-00 a.m. To 4-00 p.m. On each Friday and from 4-00 p.m. To 6-00 p.m. On each Monday. After the meeting with the minor the respondent No,1 shall have to leave back the minor at the residence of petitioner.
(7) That the petitioner shall not refuse any gift presented by the respondent to the minor.
(8) That the father of the respondent No,1, i,e. The paternal-grandfather of the minor shall be free to see the minor at the residence of the petitioner once in a month on Friday for two hours.
(9) That in case the respondent No,1 fails to deliver back the minor within time stipulated hereinabove after meeting with the minor, the petitioner will report the matter to the Illaqa Police and the police will recover the minor and hand over minor to the petitioner. The amount of security furnished by the respondent No,1 in that event will be liable to be forfeited and be given to the petitioner. The breach of the conditions in this behalf will also be reported to the Court for decision and action.
' It is, therefore, prayed that this Honourable Court may be pleased to dispose of the petitions Nos.51 of 1989 and 54 of 1989 in terms of the settlement arrived at between the parties. The orders in terms of the compromise be passed. Breach of any condition of this compromise shall be treated as breach of the order of the Honourable Court?
4. It is the case of the prosecution that on 17-1-1992 at about 12 noon accused Zeeshan Muhammad Siddiqui took away Yameena for meeting purpose in terms of the order of compromise, but thereafter she was not restored to the custody of her mother, viz. Mst. Farea Razi, the complainant in this case, who in fact was taken away to U.S.A. The complainant made efforts to lodge F.I.R., but only a non-cognizable report was recorded in Daily Diary (Roznamcha). It was only due to intervention of S.S.P. (Central), Karachi, that the F.I.R., being Crime No,80 of 1992 was registered at Gulberg Police Station on 10-3-1992 at 1-30 p.m. Applicants Abdul Hai Siddiqui, Akhlaque Ahmad Khan and Muhammad Haroon Siddiqui (BA. No,218 of 1992), who are brothers-in-law of Zeeshan Muhammad Siddiqui, the main accused, apprehending their arrest surrendered before this Court seeking pre-arrest bail. According to them the police had become extra harsh under the instructions of S.S.P. And they have made arrangements to arrest them, if they approach to Court of Sessions for getting redress. Applicant Iqbal Muhammad Saeed (B.A. No,245 of 1992), who is a friend of accused Zeeshan Muhammad Siddiqui, apprehending his arrest had approached the Court of Sessions for anticipatory bail, but without success. It is in these circumstances that he, has also filed application for pre-arrest bail.
5. I have heard Mr. Abdul Mujeeb Pirzada, learned counsel for applicants, Mr. Rashid A. Rizvi, learned counsel for complainant Mst. Farea ,Razi, and Mr. S. Sarfraz Ahmad, Additional A.-G. For State. The learned Additional A.-G. Has raised no objection to the grant of pre-arrest bail to applicant Iqbal Muhammad Saeed (BA. No,245 of 1992). He has, however, made a feeble attempt in opposing the bail application of applicant Abdul Hai Siddiqui, Akhlaque Ahmad Khan and Muhammad Haroon Siddiqui.
6. Admittedly the custody of Yameena was obtained by co-accused Zeeshan Muhammad Siddiqui from complainant Mst. Farea Razi in terms of the order of this Court. Obviously, therefore, Zeeshan Muhammad Siddiqui or the applicant or applicants, as the case may be, did not commit any offence under section 363, P.P.C. While taking away Yameena from the house of complainant Mst.
Farea Razi. The offence of kidnapping in terms of section 363, P.P.C. Was in fact committed when Yameena was taken out of country in violation of the order passed by this Court on the application of compromise filed by the parties. The perusal of the record, however, shows that there is no iota of evidence connecting applicants Abdul Hai Siddiqui, Akhlaque Ahmad Khan, Muhammad Haroon Siddiqui (BA. No,218 of 1992), and Iqbal Muhammad Saeed (BA. No,245 of 1992), with the offence of kidnapping out of Pakistan. Even Mr. Rashid A. Rizvi, learned counsel for complainant has extended concession to applicant Abdul Hai Siddiqui and Akhlaque Ahmed Khan by stating that presently no evidence worth consideration was available against them.
7. The main charge against the applicants is that applicants Abdul Hai Siddiqui, Akhlaque Ahmed Khan and Muhammad Haroon Siddiqui, being the brother-in-law, and applicant Iqbal Muhammad Saeed, being a friend of co-accused Zeeshan Muhammad Khan, had conspired with him to facilitate the removal of Yameena out of the country. Mere knowledge, acquiescence, or approval an act without cooperation is not sufficient to bring a case within the mischief of section 120-B, P.P.C. And in order to constitute a criminal conspiracy there should be a meeting of minds for the purpose of doing an illegal act. Such evidence is, however, lacking in this case. In fact the complainant had not assigned any role to these applicants in her non-cognizable report lodged at the police station and the application made before .This Court in C.P. No, S-51 of 1989.
8. The arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for the grant of pre-arrest bail and this is in fact the view taken by the Supreme Court in the case of Jamaluddin v. The State, reported in 1985 SCMR 1949. The power under section 498, Cr.P.C. Though of an extraordinary nature is meant to be exercised in appropriate cases and the refusal to exercise such direction when the circumstances of a case demand for such an exercise may reduce section 498, Cr.P.C. To a dead letter. The applicants appear to be respectable persons. Two out of them are senior Government officials and their professional corner, respect and honour are likely to be ruined if they are arrested in a case in which there is hardly any evidence worth consideration against them.
9. A legal objection about the maintainability of Criminal Bail Application No,218 of 1992 filed directly before this Court may now be taken. It is contended by learned Additional A.-G. That this application should have been filed before the Court of Sessions. Ordinarily such applications are filed before the Court of Sessions, but certain circumstances may arise, whereunder such applications may be filed directly before the High Court. This question was examined by this Court in the case of Wall Muhammad v. The State reported in 1973 P Cr. L J 873, wherein it was observed:-- "The first question that agitated my mind was, whether in a case of concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo, however, relied upon a Full Bench case reported in Shah Zillur Rehman Mutawalli v. The State PLD 1959. Dacca 192, where in a case of concurrent jurisdiction on the revisional side, it was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of on its own merits. There are many other cases in the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction."
10. The Supreme Court of Pakistan has taken a similar view in the case of the State v. Malik Mukhtar Ahmad Awan, reported in 1991 SCMR 322, wherein it was remarked:-- "It is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance approach the Court of Session for pre-arrest bail before approaching the High Court..."
' Even otherwise this will be an exercise in futility as the learned Sessions Judge has already formed his opinion while dismissing the bail application filed by applicant Iqbal Muhammad Saeed.
11. The offence with which the applicants are charged does not fall within the prohibitory clause of section 497, Cr.P.C. The grant of bail in such a case is a rule while its refusal should be an exception..
Again the basic rule is bail and not jail. (Refer State of Rajesthan v. Balchand, reported in AIR 1977 SC 244).
12. Having regard to the above circumstances, I am of the view that all the applicants are entitled to the grant of pre-arrest bail. The orders by which interim bail was granted to them are, therefore, confirmed. The applicants will associate themselves with the investigation of this case and they will appear before the Investigating Officer and the Court, as and when required. It will, however, be open to the trial Court to cancel the to these applicants if satisfactory evidence showing their complicity is collected by the police.
Prearrest .