' Petitioner seeks cancellation of to respondent by Ch. Riaz Mahmood, Additional Sessions Judge, Rahimyar Khan vide his order, dated 20-11-1994 in case F.I.R. No,533/94, dated 18-10-1994 under section 16 Offences of Zina (Enforcement of Hudood) Ordinance, VII of 1979 Police Station Sadar Rahim Yar Khan.
2. The prosecution story as given in the F.I.R. Briefly stated is that Mst. Sajida Bibi daughter of Manzoor had been given in Nikah of one Nawaz on 22-4-991, but Rukhsati had not taken place.
Seven/eight months prior to the lodging of the F.I.R., co-accused Shaukat, Mst. Shahnaz, Niamat Ali and Liaqat Ali respondent started visiting Mst. Sajida's house and it was suspected that she had developed illicit relations with Shaukat. Ten days prior to the lodging of the F.I.R., Mst. Shahnaz came to complainant's house and took away Mst. Sajida never to return. On queries made, it was found that Mst. Sajida was seen going in a car alongwith Shaukat who has since been proclaimed offender.
3. Liaquat Ali co-accused was granted bail on the ground that the only role attributed to him is that he was sitting in a car in which Mst. Sajida was being taken away by Shaukat and others.
4. Learned counsel for the petitioner seeks cancellation of bail on the following grounds:--
(i) that respondent has obtained bail through misrepresentation inasmuch as he got his pre-arrest bail petition to be fixed before Ch. Riaz Ahmad, Additional Sessions Judge, Rahimyar Khan by making an incorrect note on his bail petition that bail application of the co-accused was pending before the said Court whereas no such bail application was pending at that time before the afore- referred Court.
(ii) that the alleged abductee Mst. Sajida has not been recovered so far.
(iii) that Criminal Miscellaneous bearing No,22/Q of 1995 was got filed on behalf of Mst. Sajida for quashment of the afore-referred F.I.R. But despite a direction by this Court, Mst. Sajida (petitioner in that criminal miscellaneous) was not produced in Court which shows that the accused party has flouted the order of this Court and lack bona fides.
(iv) that respondent has not joined the investigation and he is not cooperating with the police for apprehending the absconding accused.
(v) that while granting bail, the learned Additional Sessions Judge has disregarded the principles for the grant of pre-arrest bail.
(vi) that neither in the pre-arrest bail application before Additional Sessions Judge nor during arguments mala fides were alleged against the complainant or the prosecution, in absence of which, pre-arrest bail cannot be granted.
5. Learned counsel for the respondent/accused submits that Mst. Sajida is legally-wedded wife of Shaukat and that she has not been abducted. He further submits that the respondent had joined the investigation.
6. Learned counsel for the State on the other hand, supported the prayer for cancellation of bail.
7. The Investigating Officer appearing in Court, on Court query, submits that the respondent has not joined the investigation so far and that besides the F.I.R. There is other evidence against the respondent to the effect that he took Mst. Sajida, the alleged abductee to Karachi and he has been extending help to Shaukat, the principal accused in the alleged offence.
8. I have heard learned counsel for the parties and have also perused the record.
9. The principles for the grant of pre-arrest bail are different from the principles which cover the grant of post arrest bail. I have gone through the copy of pre-arrest bail moved before the Court of Sessions and have found that no such ground was taken therein to show that the respondent apprehended arrest on account of mala fides on the part of the complainant or the prosecution.
Even before this Court, during arguments, learned counsel for the respondent has not referred to any enmity or mala fides which could have prompted the complainant to falsely implicate the respondent. I also take exception to the manner in which the petition for pre-arrest bail was got fixed before Ch. Riaz Ahmad, Additional Sessions Judge, Rahim Yar Khan by giving a false note on the body of the petition that the bail application of the co-accused was fixed before the same Court. The falsehood of this note has not been controverted by learned counsel for the respondent appearing in Court today. The learned Additional Sessions Judge, in his judicial wisdom while granting bail to respondent did not appreciate the fact that not only the principal accused had absconded but the alleged abductee had not been recovered and the grant of extraordinary concession of pre-arrest bail could not have been extended to the respondent in the facts and circumstances of this case and in the light of law laid down by August Supreme Court as also this Court. The conduct of the respondent in not joining investigating also shows that he has misused the concession of bail.
10. For what has been discussed above, the order, dated 20-11-1994 passed by Additional Sessions Judge Rahim Yar Khan is found to be perverse in law. The same is therefore, set aside and the to respondent in case F.I.R. No,533/94, dated 18-10-1994, Police Station Sadar Rahim Yar Khan is cancelled.