' C.M. No,1 of 1999 ' Allowed subject to all just and legal exceptions. Disposed of.
' Crl. Misc. No,48-CB of 1999
2. Through this petition the petitioner. Has called in question the order dated 22-2-1999 whereby respondents Nos.2 to 6 were admitted to pre-arrest bail by the learned Sessions Judge, Sahiwal in case F.I.R. No,804 registered at Police Station Noor Shah, District Sahiwal on 23-12-1998 for an offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. It has been contended by the learned counsel for the petitioner that respondents Nos.2 to 6 are specifically named in the F.I.R. And eye-witnesses are available with the prosecution to implicate the said respondents. It is further argued that the prerequisites for pre-arrest bail, including the question of mala fide, had not been adverted to by the learned Sessions Judge while admitting respondents Nos.2 to 6 to pre-arrest bail. It has lastly been contended that respondents Nos.2 to 6 have misused and abused the concession of bail by issuing threats to-prosecution witnesses.
4. After hearing the learned counsel for the petitioners and going through the documents annexed with this petition it has been noticed that there is a delay of nine days in lodging of the F.I.R.; the offence invoked against respondents Nos.2 to 6 does not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. And the role attributed to respondents Nos.2 to 61 is minimal and hardly inculpatory. It is1 unfortunately true that the learned Sessions Judge, Sahiwal had not adverted to the relevant considerations governing the law of pre-arrest bail yet a bail is not to be cancelled if such, considerations are otherwise readily found floating on the surface of a case. In the present case the F.I.R. Shows that the alleged entice had long-standing illicit relations with Ashraf alias Kali accused. The F.I.R. Further shows that respondents Nos.2 to 6 were only seen waiting for a bus at a bus-stop at a time when the said Ashraf accused and the enticee were also seen standing there. The reason for the presence of respondents Nos.2 to 6 at the bus-stop was stated in the F.I.R. To be going for purchase of house holding articles. It is, therefore, obvious that apparently there is nothing available with the prosecution so far to implicate respondents Nos.2 to 6 in the offence allegedly committed by their. Co-accused Ashraf alias Kali. Levelling of allegation in the absence of any incriminating material or evidence itself smacks of mala fide on the part of the complainant. Thus, an absence of consideration of these aspects by the learned Sessions Judge does not mean that respondents Nos.2 to 6 were not otherwise entitled to the concession of pre-arrest bail in this :case. It is settled law that an act or omission of the Court is not to prejudice the case of A party.
5. As regards the allegation of misuse or abuse of the concession of bail suffice it to observe that the petitioner has failed to support or substantiate that allegation with any material before this Court.
6. Therefore, finding no occasion to interfere in the exercise of discretion by the learned Sessions Judge, Sahiwal in the matter of bail granted to respondents Nos.2 to 6 this petition is hereby dismissed in limine.
7. Let a copy of this order be sent to the learned Sessions Judge, Sahiwal (Mr. Abdul Ghaffar Khan) for his information.