' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed against grant of bail to the accused/respondents Noor Hakim and Abdul Hakim in a case registered under section 6/10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 120-B, P.P.C.
2. The order passed by the High Court in relation to the question of bail which is also under challenge and scrutiny reads as follows:- "This order will also dispose of Criminal Miscellaneous No,82 of 1992 Amir Hamayun v. Noor Hakim etc. As both the matters arise from the same F.I.R. In this Criminal Miscellaneous the petitioner has prayed for bail while in the connected application a request has been made for cancellation of the bail allowed to the accused/respondent by the learned Magistrate.
' The F.I.R. In this case was lodged by Amir Hamayun on 8-9-1991 with the allegation that his neighbour, Waheed (absconder), used to stand in front of his house and that in spite of repeated requests of Noor Hakim, father of the absconder, and his uncle Abdul Hakim, he did not mend his ways. On 7-9-1991 a day before the report his daughter, the abductee Nagina Hamayun, alongwith his other daughters Noreen Hamayun and Iram Hamayun started from the house to the school according to the information of some children, Abdul Hakim petitioner and the absconder Waheed were standing near the school. It was further alleged that at the instance and instigation of the present petitioner and Noor Hakim, the accused/respondent in the connected application, Waheed, the absconder, abducted Nagina Hamayun. On the basis of these accusations the present case was registered against the accused through F.I.R. No,528 dated 8-9-1991 under section 6/10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance read with section 120-B, P.P.C.
' I heard the learned counsel for the parties and also the learned Assistant Advocate-General appearing for the State.
' The learned Magistrate had allowed bail to the petitioner because there was no evidence to show that either the abductee had resisted her alleged abduction or had raised hue and cry and that in case of resistance, and hue and cry, the complainant, whose house is nearby, would have been attracted to the spot. It is to be noted that the alleged occurrence took place on 7-9-1991 at 7 a.m.
But the report was made on the next day i.e, 8-9-1991 at 22-00 hours. There had been no complaint to the Sessions Judge of any misuse of the concession bail. In the circumstances, the Magistrate had correctly exercised discretion in the matter had therefore the Sessions Judge was not legally justified for recalling the discretionary order of the Magistrate allowing bail to the petitioner.
Accordingly, Abdul Hakim, petitioner is entitled to bail and his application for bail is accepted. He should be allowed bail in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Illaq/Duty Magistrate.
' The bail cancellation application is without any merit as even the presence of the accused/respondent has not been shown on the spot, and, therefore, the exercise of discretion by the Magistrate in releasing the accused/respondent on bail cannot be successfully challenged.
The bail cancellation application is accordingly rejected".
3. This Court took cognizance of this matter on an application submitted by Mst. Mamuna Hamayun mother of the abductee Mst. Nagina Hamayun, addressed to the Chief Justice, which was ordered to be treated as a petition for leave to appeal on relaxation of the relevant rules. In the said application a confident assertion was made as follows:-- "On 9-9-1991 the accused Noor Hakim was arrested by the Investigating Officer while he was driving a staff car No,4 N.-W.F.P., and instead of taking the accused to the police station, the Investigating Officer contacted the Private Secretary of Provincial Minister who issued a certificate to the effect that the accused was on duty with the Minister in Islamabad. The Private Secretary directed the Investigating Officer to see the District Magistrate forthwith. So the Investigating Officer took the record of the case to the District Magistrate, who in turn gave him a letter addressed to the City Magistrate for the bail of the accused. This fact has been mentioned in Case Diary No,2 dated 9-9-1991 which is the part of the file."
We having summoned the relevant file have found that the main assertion made by the mother of the abductee regarding the undue influence on account of which Noor Hakim respondent was allowed bail has support of the record -- the police case diary.
' This fact alone is enough to treat the order granting bail to Noor Hakim as unlawful besides being biased. There is no alternative but to set aside the same. At the same time it has to be held that the refusal of the High Court to cancel the bail in this case for the same reason, is held to be unlawful besides being invalid and improper. To this extent the order of bail to Noor Hakim and the order of the High Court to the extent it refused to cancel the bail of Noor Hakim respondent are set aside. As a result the bail granted to him stands cancelled under subection (5) of section 497, Cr.P.C. Which provides that the High Court or a Court of Session and in case of a person released by itself any other Court, may cause any person who has been released under this section, to be arrested and may commit him to the custody. Accordingly, Noor Hakim the accused/respondent shall "be arrested" and "be committed to custody". To this extent the appeal is allowed.
4. As material has been placed before this Court showing that an attempt was made to bring a Court of law under undue influence the Advocate-General shall place that matter in an independent case for taking further action in accordance with law, before the. High Court. Result in the said case shall be transmitted by the Advocate-General to this Court. It is agreed by all that as an interim relief till competent Courts pass order in this behalf, the alleged abductee shall stay with Mr. Abdul Hakim as trustee for the Courts. He shall furnish personal bond in the sum of Rs,10,000 to the satisfaction of Additional Advocate-General, N.-W.F.P. The appeal against Abdul Hakim is dismissed.