' Respondents Nos.1 and 2 stand charged for having committed an offence punishable under sections 5, 10 and 11, Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) vide F.I.R. No,475, dated 4-5-1999 registered at Police Station, Kalu Khan, Tehsil and District Swabi.
2. The petitioners were allowed pre-arrest bail by the Additional Sessions Judge, Swabi (Sahibzada Khurshid Ahmad) by his order recorded on 19-5-1999. Hence this bail cancellation application.
3. Mr. Safirullah, Advocate learned counsel for the petitioner present and heard. The material placed on file perused.
4. The record reveals that Mst. Zahida is the legally wedded wife of Sultan, respondent No,1 and that their Nikahnama is available on the record. Mst. Zahida also got recorded her statement with the Judicial Magistrate, Swabi (Mr. Ijaz Ahmad Khan) on 3-5-1999 wherein she stated:-- "I am aged about 21 years. I have contracted marriage with Sultan Ahmad son of Ali Ahmad, resident of village Barn Khel, Tehsil and District Swabi with my free consent. No one has used undue influence upon me in connection with this marriage. I am matured and with own consent want to contract marriage with the Sultan Muhammad without pressure and under influence. I have obtained a sta mp paver for the Proof of marriage which is duly slowed and thumb-impressed_ by me which is Exh.PA. We have also scribed the Njkahnama Which is Exh.PB. I have also signed and thumb-impressed the same with my consents, The Nikainiama is duly signed by witnesses and Nikah Register. I am not engaged to any other person to this.
R.O. & A.C.
Dated 3-5-1999. (Sd.) ljaz Ahmad Khan, Judicial Magistrate, Swabi.
Thumb-impression.
(Mst. Zahida d/o Sher Dad)
5. Faced with the above situation the learned counsel for the petitioner was unable to convince me that the Additional Sessions Judge, Swaki had committed any illegality or material irregularity in granting pre-arrest bail to respondents-accused Nos.1 and 2.
6. On the other hand, I find that the Additional Sessions Judge has properly evaluated/appreciated the material produced before him by the parties, In the shape of statement/Nikahnama, and has correctly based his findings on the same. Since the order of the Additional Sessions Judge is neither arbitrary/perverse nor suffers from any illegality or material irregularity therefore there is no need for this Court to interfere ' with the same.
7. Even otherwise strong/exceptional grounds are needed for the cancellation of bail granted by a Court of competent jurisdiction because the provisions of section 497(5), Cr.P.C. Are not at all punitive in nature. In the cin-unisiance3 bail and not the Jail should be the rule. In this respect I am supported by a case Syed Amanullah Shah v. The State, decided by a Full Bench of the Supreme Court of Pakistan comprising of his Lordship Mr. Justice Zia Mehmood Mira, his Lordship Mr. Justice Muhammad Munk Khan and his Lordship Mr. Justice Sh. Riaz Ahmad and reported as PLD 1996 SC 241 NLR 1996 (Criminal) Supreme Court 188 wherein it was held:--
(b) S. 497(5)---Very strong and exceptional grounds would be required for cancelling bail granted by a Court of competent jurisdiction as provisions of S. 497(5) are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, life imprisonment or imprisonment for ten years.
(c) Ss. 497/498---Accused should not be deprived of benefit of Vail whenever reasonable doubt arises about participation of an accused person in crime or about truth/probability of prosecution case and evidence proposed to be produced in support of charge---In such a situation it would be better to keep an accused person on bail than in Jail during trial.
(e) Ss. 497/498---Personal liberty granted to an accused by a Court of competent jurisdiction through grant of bail, should not be snatched away from him unless it becomes necessary to deprive him of his liberty under law.
8. This bail cancellation application is without any substance and accordingly rejected in limine.