' The petitioner has moved this petition for pre-arrest bail being accused in case F.I.R. No,637, dated 13-10-1994 registered under sections 18/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with Police Station City A-Division, Sheikhupura.
2. According to F.I.R. The petitioner alongwith his co-accused Waheed caught hold of the complainant, namely Farhat Naheed from her arm and said that he loved the complainant and she should go with him; upon this the complainant gave a slap on the face of Islam Saeed Bhatti who then caught hold the complainant from her' arms and put her into car by dragging; on raising hue and cry of the complainant, the eye-witnesses came and she was rescued. An insignia of M.N.A. Was affixed on the car being driven by the petitioner and his co-accused.
3. The petitioner and his co-accused applied for bail before arrest in the Court of learned Additional Sessions Judge who dismissed the same vide order, dated 13-11-1994 observing as under:-- "The allegation levelled against the present petitioners is supported prima facie by the police investigation and the statements recorded by the police. No malice or mala fide is available on the record for the false implication of these petitioners by the police or by the complainant. The act alleged against the present petitioners is of a heinous nature, hence the petitioners are not entitled to the concession of pre-arrest bail."
4. During investigation D.S.P. Dropped the offence under section 18/11 of Ordinance VII, 1979 and concluded that offence if any made out would be under section 354, P.P.C. It is amazing to note that on the same day when pre-arrest bail application of the petitioner was rejected by the learned Additional Sessions Judge on 13-11-1994, they were produced before the Illaqa Magistrate who on the basis of conclusion of the D.S.P. That only offence under section 354, P.P.C. Is made out, allowed the concession of bail to the petitioner and his co-accused vide order, dated 13-11-1994.
The Legal Branch thereafter did ndt agree with the report of D.S.P. And recommended for alteration of the offence from 354, P.P.C. To offence under section 18/11 of Ordinance VII, 1979.
5. Thereafter Waheed Ahmad co-accused of the petitioner applied for post-arrest bail as the offence was altered from section 354 to section 18/11 of Ordinance VII, 1979 and he was granted bail by the learned Additional Sessions Judge on 12-2-1995 observing as under:-- "In view of this prima facie factual position it seems as if he has been involved in this net of the offence under question Without any due participation and the intention regarding the incident in question. The ingredients of Article 11 Offence of Zina of the said Ordinance against the present petitioner prima facie is not available on the record. It is also notable that no attribution of any illicit act yet to be committed with her by the present petitioner is alleged by the victim. In view of these circumstances the case against the present petitioner becomes of further inquiry because of the fact that even as per the investigation the presence of the present petitioner is also termed as doubtful at the place of occurrence. He is behind the judicial lock-up and no more required by the police."
6. Learned counsel for the petitioner in support of the petition vehemently contended that the ingredients of section 18/11 of Ordinance VII are not attracted and at the most offence if any made out is under section 354, P.P.C. As recommended by the D.S.P. Investigating Officer, the petitioner was arrested after cancellation of pre-arrest bail on 13-11-1994 and nothing was recovered from him, hence he was released on bail on the same day i,e, 13-11-1994 by the learned Magistrate. He next submitted that a compromise has been reached between the petitioner and the complainant and as such the petitioner is entitled to the concession of pre-arrest bail. It was lastly argued that since co-accused of the petitioner has been admitted to bail, the petitioner is also entitled to the same concession.
7. Conversely learned counsel for the State opposed the petition and submitted that the petitioner after release on bail did not join the investigation. And has been declared proclaimed offender since 29-12-1994. Recovery of rifle and car is yet to be made. According to learned counsel, the offence with which the petitioner is charged is punishable with life imprisonment and falls under proviso I to section 497, Cr.P.C.
8. Learned counsel for the complainant has also filed his power of attorney and contended that compromise has been reached between the complainant and the respondent, hence he has no objection if bail is granted to the petitioner-accused. In support of his submission he relied on Muhammad Akbar v. The State 1987 M LD 3096.
9. I have heard learned counsel for the parties. From the perusal of the F.I.R. It is evident that the petitioner has been named in the F.I.R. And there -are natural and independent witnesses to support the prosecution version. The report of D.S.P. Is classic in its nature and I have yet to come across such investigation report; even the D.S.P. Half heartedly has come to the conclusion that the F.I.R. Was not false and there was truth in the allegation levelled against the accused. The contention of learned counsel for the petitioner that a compromise has been reached between the parties is of no help at this stage as laid down in the case of Parvez Iqbal v. The State PLD 1985 FSC 134 and Muhammad Sharif alias Bhaggi v. The State 1988 PCr.LJ 582. In Muhammad Ashraf's case, it was held bail cannot be allowed in cases of heinous crimes on the ground of compromise between the parties or on the desire of the complainant.
10. The recovery of car used in the commission of the offence and the rifle is yet to be made from the accused-petitioners. It is also noteworthy that the petitioner after rejection of pre-arrest bail by the learned Additional Sessions Judge instead of surrendering before the Court absconded which conduct of the petitioner amounts to misuse of concession of pre-arrest bail disentitling him to relief of pre-arrest bail. The criterion for the grant of pre-arrest and post-arrest bail has been spelt out by the Honourable Supreme Court of Pakistan in the case of Sarwar Sultan v. The State and another PLD 1994 SC 133. It is laid down in the precedent that in section 498, Cr.P.C. Amendment has been made by Code of Criminal Procedure (Amendment) Act of 1976 in this shape of section 498-A whereby a restriction has been imposed on grant of bail before arrest to a person who does not surrender before the Court.
10. For all that has been stated above, I am not minded to grant the extraordinary concession of bail to the petitioners. The petition is dismissed.
11. It is a matter of great concern that pre-arrest bail application of the petitioner was rejected by the learned Additional Sessions Judge on 13-11-1994 but on the same day, he was granted bail by the learned Magistrate though after-arrest. It is not understandable as if the offence was changed into one under section 354, P.P.C. Why this was not brought to the notice of the learned Additional 'Sessions Judge when the State was very much represented. This smacks of something else. Direct the Illaqa Magistrate Police Station "A" Division, Sheikhupura to explain his position and submit a report to this Court within 15 days.
13. Before parting with this order, I am at pains to note that the law' enforcing agencies should ensure that insignia affixed on the vehicle is visible only when the dignitary is in the vehicle, otherwise the same should be covered wrapped so that tendency of committing crimes by making the insignia like M.N.A./M.P.A. Visible to influence the agencies is curbed. The classic example is the case in hand.
14. A copy of this order be sent to Chief Secretary, Government of the Punjab and the Inspector- General of Police Punjab for necessary action.