Brief facts of the case are that a case F.I.R. No. 110, dated 11-5-1994 under section 16 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 364, P.P.C. Was registered at Police Station New Town, Rawalpindi on the report lodged by Col. Syed Maqbool Hussain against Waqar Hassan, Shah Zeb, Shaheen Wazir and Laila.
2. According to the contents of the F.I.R. Dr. Zaheera Maqbool daughter of the complainant was serving in the Holy Family Hospital, Rawalpindi. Between the night of 5/6th May, 1994 she was allegedly abducted/left the Hospital. This information was given to the complainant by Mst.
Shaheen Wazir, Head Nurse of the said Hospital. It is stated that Dr. Zaheera Maqbool was residing with Mst. Shaheen Wazir. Dr. Zaheera Maqbool did not come back to the Hospital. It was also informed to the complainant that the alleged abductee had some relations with her previous husband namely Syed Waqar Hassan. It is also stated that one Shah Zeb, Lab Technician was proposed to the alleged abductee for marriage because she had some type of relationship with that person. The alleged abductee had also some relations with Mst. Laila and used to visit different places with her. Thus, the complainant registered the present case against the aforesaid accused on the suspicion of abduction of Dr. Zaheera Maqbool.
3. Originally this case was registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but later on during investigation on 23-9-1994 the offence under section 364, P.P.C. Was also added. So far she has not been recovered and the investigation is still going on.
4. Syed Waqar Hassan, respondent No.1 /accused was released on bail vide order dated 1-6-1994 passed by the learned Additional Sessions Judge. On addition section 364, P.P.C. In the case, the accused/respondent No. l applied for bail afresh. On 14-6-1995 he was granted pre-arrest bail in the offence under section 364, P.P.C.
5. Learned counsel for the petitioner seeks cancellation of ball granted to Syed Waqar Hassan accused on the following grounds:--
(a) that so far the alleged abductee has not been recovered in spite of that more than two years have passed;
(b) that there is sufficient evidence on record as far as the present respondent No.1/accused is concerned, Mst. Nusrat Begum and Neik Muhammad have made statements under section 161, Cr.P.C. Implicating the accused; ''
(c) that according to the statement of Mst. Nusrat Begum, recorded under section 161, Cr.P.C. That while leaving Hospital Dr. Zaheera Maqbool told her that she was going to meet her husband Syed Waqar Hassan/respondent No.1 for the purpose of reconciliation of marriage because of the strained relationship and divorce notice was sent to her by her husband, regarding which the matter was pending before the concerned Chairman of Union Council;
(d) that statement of Neik Muhammad was also recorded under section 161, Cr.P.C. Wherein it is stated that Dr. Zaheera Maqbool/the alleged abductee was seen in the company of the present respondent No.2 on 5-5-1994 by 5-00 p.m. At Commercial Centre, Satellite Town, Rawalpindi;
(e) that during investigation statement of Major Amir was recorded before the Investigating Officer wherein he stated that Syed Waqar Hassan stated before him that he would take revenge and kill her at that place from where no one would recover her dead body;
(f) that statements of Neik Muhammad, Mst. Nusrat Begum, Shaheen Wazir and Dr. Aliya are regarding the last seen alive evidence of Dr. Zaheera Maqbool;
(g) that so far the alleged abductee has not been recovered by the police and there is a great suspicion that she must have been murdered by the accused /respondent No.1;
(h) that both the orders for granting bail are not speaking orders; and
(i) that unless the bail is not cancelled, the recovery of the alleged abductee under the aforesaid circumstances is not possible and granting bail to the accused at this stage, tantamounts to obstruct the smooth investigation of the case.
6. On the other hand, learned counsel for the respondent has vehemently opposed the bail cancellation petition on the grounds:--
(a) that it is a case of no evidence especially for the reasons that there is no eye-witness and the complainant party has not informed the police that Dr. Zaheera Maqbool was abducted by any one;
(b) that she was divorced by her husband on 13-5-1993 which means that the dispute was earlier before to the registration of case;
(c) that the divorce deed is a conceded document, placed before the police, as such, it can be said that she was divorcee and Syed Waqar Hassan had no connection/relation with her;
(d) that as far as the contents of the F.I.R. Are concerned, only suspicion has been expressed by the complainant regarding the abduction of his daughter Dr. Zaheera Maqbool;
(e) that admittedly, prior to the aforesaid divorce, she contracted three other marriages with different persons;
(f) that according to the statement of the complainant/petitioner she might have contracted marriage with one Latif Kazmi. For that purpose she used to visit the house of Latif Kazmi;
(g) that father of Latif Kazmi had desired that she should restrain to marry with his son because of her chequered character;
(h) that in bail granting order, it is stated that she had illicit relations. Particularly para. 4 of the order dated 14-6-1995, and this fact has been supported by the statements of number of persons/P.Ws.;
(i) that according to the record, so far, prepared by the investigating agency the respondent/accused was found innocent. The investigation of this case was taken up by Shamsher Ali, S.I., Police Station New Town, Rawalpindi. According to his investigation, respondent No. l exonerated. This investigation was confirmed by Mirza Ajmal Beig Inspector C.I.A. Later on investigation was entrusted to Iftikhar Hussain, S.H.O./Inspector, Ganj Mandi, Rawalpindi. According to his investigation she was addicted of narcotic and had some illicit relation with Baber Mirza, Amir Ilyas, Humayon, Latif Kazmi and some other persons. Presently the investigation is with the D.S.P.
Cantt. According to him Ilyas and Amir Butt are also involved in this case;
(j) that according to the statement of Amir Zaman, Waiter of Park View Hotel Commercial Market, Satellite Town, Rawalpindi, she was also seen there;
(k) that the respondent/accused has been joining the investigation continuously whenever the police needed;
(1) that suspicion has been expressed by the investigating agency but according to law suspicion about some one cannot be taken as substantial and legal evidence;
(m) that in the present case bail has been granted and the matter is pending before the lower Court. It is not in the interest of justice that one bail is granted, this valuable right of the respondent/accused to withdraw it unless there are exceptional circumstances. Learned counsel for respondents has relied upon the precedents 1994 SCM R 1283, 1995 SCM R 58 and 1987 PCr.LJ 277;
(n) that there is no allegation that respondent/accused ever misused the privilege of bail during this period; and
(o) that in such-like cases the complainant party is not to be encouraged to come forward to seek withdrawal of the bail. He has relied upon certain precedents 1995 PCr.LJ 259 and 1987 SCM R 1158.
7. At the end learned counsel for the State Qazi Ahmad Naeem Qureshi was provided opportunity to address the Court in the matter. Though he tried to state that bail already granted to the petitioner be withdrawn but he failed to point any material in respect of the order of granting bail.
8. I have heard the arguments of the learned counsel for the parties and gone through the record.
Admittedly, in this case there is no eye-witness regarding the abduction of Dr. Zaheera Maqbool.
The prosecution is not sure regarding this fact that as to whether she has been murdered or she is still alive. The case of the complainant is that there are some suspicions regarding the present accused. But during investigation number of other persons were also suspected by the different Investigating Officers who carried out investigation of this case. Every one of them (Investigating Officers), tried to find out real fact especially with reference to the views recorded by the Inspector/S.H.O. Iftikhar Hussain and some others. According to their (Investigating Officers) views some other persons were not only suspected but they might be involved in this case. Keeping in view the evidence collected during investigation, it can be said that many efforts were made to recover the alleged abductee. There is no evidence on record that the present respondent No. l/accused is definitely involved in the commission of offence. I do not agree with the submissions made by the learned counsel for the respondents that suspicion never gives basis to register the case. It is, however, an accepted principle of law that the prosecution must prove its case beyond reasonable doubt. If it fails then benefit goes to the other side. It is not only the duty of the State but it is an important concern of the Court to look into the affairs and find out the reality. The liberty of a person is of great importance (if innocent) then how he can detain on some suspicion.
9: The Court has also inquired from the learned counsel for the complainant and State that as to whether after the grant of bail any other vidence was collected and brought on record by the Investigating Officers but the answer was in negative. In these circumstances, it is not possible to 'give verdict that the prosecution has succeeded in making out reasonable case against the respondent.
10. At this stage, learned counsel for the complainant was provided opportunity to make submission as to whether some important piece of evidence is available on record to show participation in the alleged occurrence of respondent No.1 but he expressed his views mostly in the nature of suspicion. As far as the latest investigation is concerned, which is being carried out by the D.S.P., a preliminary report has been prepared. The views of the D.S.P. Are of the nature of suspicion.
In any criminal matter whether it goes in favour of the prosecution or defence, it is an accepted principle of law that slightest doubt must go in favour of the accused party and no benefit can be given to the prosecution side.
11. In the order, dated 14-6-1995 passed by the learned Additional Sessions Judge, Rawalpindi, it has also expressed that there is no evidence on record for cancellation of bail.
12. In these circumstances, till to date there is no fresh evidence/ground to withdraw the bail.
However, as and when some appreciable and important piece of evidence is collected by the Investigating Officer the matter regarding p withdrawal of the bail can be reopened. With these observations the petition is dismissed. Any observation made in this order shall not affect the merit of the case at the time of trial.