Gulzar Ahmad complainant has filed this application for cancellation of bail granted to (1) Gulzar Ahmad by the learned Additional Sessions Judge vide order dated 15-5-1996 and (2) Abdul Ghafoor and Mst. Gudi vide subsequent order dated 20-6-1996.
2. F.I.R. No.494 was registered at the instance of the petitioner on 24-9-1996 on the allegations that he was married to Mst. Gudi, he went to Karachi and in his absence Gulzar Ahmad son of Muhammad Din (respondent No. 1) developed illicit relations with his wife and later on abducted her with the connivance of her father. On these allegations the case was registered against the alleged abductor, Mst. Gudi and her father Abdul Ghafoor, under section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 420, 468 and 471, P.P.C. At Police Station Chak Jhumra on 24-9-1995.
3. It was contended before the learned Additional Sessions Judge on behalf of the new husband that the complainant divorced Mst. Gudi and thereafter she contracted marriage and out of this wedlock they have a suckling child. It was also contended that the F.I.R. Was lodged after one year and seven months. After considering these arguments, the learned Additional Sessions Judge granted bail to the new husband in the following words:-- "Keeping in view the arguments advanced by both the parties and perusing the record. I am of the considered view that there is a registered Nikahnama in favour of the petitioner which has been duly verified by the Investigating Officer. Mst. Gudi the alleged abductee of this case had been living with the petitioner as his legally wedlock. The delay of more than 1/1-2 years in lodging the F.I.R., has not been explained in the F.I.R. The matter therefore, requires further inquiry. I accept this bail application. The petitioner is allowed bail subject to furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of this Court."
4. Subsequently pre-arrest bail was granted to Mst. Gudi and her father Abdul Ghafoor mainly on the ground that Mst. Gudi contracted marriage after Talaq and she already has a child from the second wedlock.
5. Learned counsel has vehemently argued that the bail granted to Mst. Gudi, her father and her new husband should be cancelled because the first marriage still subsists. He has further submitted that the Nikahnama pressed into service by the accused persons has been found to be a fabricated document.
6. After hearing the learned counsel at quite some length, I have not been persuaded to issue notice for cancellation of bail granted to the respondents. Whether the petitioner divorced his wife Mst. Gudi or not is a question of further inquiry which shall be established at the trial. Even if the Nikahnama pressed into service by the respondents is ignored for arguments sake, the presumption in the attending circumstances would be. That Mst. Gudi and Gulzar Ahmad son of Muhammad Din were living as husband and wife for more than a year and they already have a suckling child. This second marriage has been contracted with the consent of the father of the lady who for that reason has also been arrayed as an accused person. Prima facie, it is not imaginable that a father f will give his daughter in marriage during the subsistence of her earlier marriage. It is not understandable nor it has been explained to my satisfaction during the arguments by the learned counsel, as to why the petitioner went from Faisalabad to Karachi to work as labourer leaving his wife behind and why the F.I.R. Was lodged after the delay of one year and seven months. Copy of the first Nikahnama shows that the marriage with Mst. Gudi took place on 22-9- 1988 by way of "Badal Ka Rishta". Learned counsel has, however, not been able to state whether it was a Watta Satta marriage.
7. In addition to what has been said above, there being a child already from the second wedlock every effort should be made to protect the legitimacy of the child. It will have to be established at the trial by the prosecution, whether the petitioner had not divorced his wife and whether respondents Nos. l and 3 were not duly married.
8. It may be emphasised that applications for grant of bail and applications for cancellation of bail under subsection (5) of section 497, Cr.P.C. Have to proceed on different considerations. Once bail is granted by a competent Court, then the discretion so exercised cannot be interfered by the higher Court unless the bail is found to have been granted arbitrarily or fancifully by ignoring material considerations for grant or refusal of bail. The bail cannot be cancelled as a matter of course nor there is any legal compulsion to cancel the bail in cases which are punishable with death, life imprisonment or imprisonment for ten years. The Hon'ble Supreme Court in this behalf has held as under in the case of Aman Ullah Shah v. The State and another (PLD 1996 SC 241):-- "Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. Are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused."
The learned Additional Sessions Judge has granted bail to the respondents on cogent grounds. I am, therefore, not inclined to cancel their bail. Resultantly this application is dismissed in limine.