1. ' By this order, I propose to dispose of two separate applications namely Criminal Bail Application No,431 of 2001 and Criminal Bail Application No,466 of 2001. The first application pertains to applicant Ghulam Abbas alias Abbas Malgani and second application was agitated by applicants Muhammad Panah and Haji Khan Langah, in a case bearing crime F.I.R. No,28 of 2001 of Police Station Dodapur for an offence under sections 10/11 and 16 Zina (Enforcement of Hudood)
2. Ordinance, 1979 read with section 34, P.P.C. The bail plea of the applicants were declined by the learned Sessions Judge, Jacobabad vide two separate orders, dated 9-6-2001 and 12-6-2001 respectively.
3. ' The prosecution story as unfolded in the F.I.R. Is that on 31-5-2001 at 4-30 p.m. Complainant Muhammad Bux appeared at Dodapur Police Station District Jacobabad and lodged an F.I.R.
4. Alleging therein that he used to live in village Dodapur and is Hari by profession. On the fateful day he had gone to lands to carry out the work at his lands and after fetching his work when he came back to his house and was present alongwith their kith and kin when his cousin namely Muhammad Ramzan alongwith his next cousin Muhammad Saleh both resident of village Zour Garh, Taluka Garhi were also present in his house. At 1-00 p.m. The son-in-law of complainant namely Ghulam Nabi, Master Abbas Malgani, Muhammad Panah and their father Haji Mouchi came on the car. Complainant took them inside the house and after leaving them he went to the shop for purchasing some food stuff articles. At 1-30 p.m. When he was coming to his house, he found her daughter Mst. Latifan and son-in-law Ghulam Nabi sitting on the rare seat of the car which proceeded towards North. On reaching the house, complainant made inquiries from his cousins Muhammad Ramzan and Muhammad Saleh as to where his son-in-law Ghulam Nabi had taken his daughter Mst. Latifan. He also made inquiries regarding Master Ghulam Abbas, Haji Khan and Muhammad Panah as they were not present in the house. The complainant took Muhammad Saleh and Muhammad Ramzan outside, but there was nobody available nor the car was present. It has been further stated by the complainant that his son-in-law Ghulam Nabi in connivance of Master Ghulam Abbas, Muhammad Panah and Haji Khan and others had enticed away his daughter Mst. Latifan in a car. Complainant being aggrieved approached Rais Punhal Khan Mangi, but he was not available. On his arrival he was informed about the incident who directed him to approach the concerned police for registration of F.I.R.
5. ' The applicants namely Ghulam Abbas alias Abbas, Muhammad Panah and Haji Khan surrendered before this Court for the purpose of bail before arrest in anticipation of their arrest, and by an order, dated 2-7-2001 the applicant Ghulam Abbas was granted interim bail before arrest whereas applicants Muhammad Panah and Haji Khan were granted the same relief of pre-arrest bail by a separate order, dated 25-7-2001.
6. ' Heard arguments of Messrs Azizul Haq Solangi, Advocate appearing on behalf of applicant Ghulam Abbas, Muhammad Saleem Jessar, Advocate, appearing on behalf of the applicants Muhammad Panah and Haji Khan and Mr. Muhammad Ismail Bhutto, Advocate for the State.
7. ' It has been contended by the learned counsel for the applicants that according to them, the F.I.R.
8. Is belated by three hours inasmuch as the incident has taken place on 31-5-2001 at 1-30 p.m.
9. Whereas the F.I.R. Was registered after three hours i.e, 4-30 p.m. When the distance from the place of occurrence and the police station is hardly one and a half k.m. It is further contended by the learned counsel that as far as sections 10/11 and 16, Zina (Enforcement of Hudood) Ordinance, 1979 are concerned, it has no applicability on the facts and circumstances of the case inasmuch as the only allegation against the applicants is to the extent of constructive liability which could be determined at the stage of trial inasmuch all these three applicants did nothing excepting that they were present at the house when the complainant had gone to the shop for purchasing certain eatable and on return the victim girl Mst. Latifan daughter of complainant was enticed away by co-accused Illahi Bux Mangi. It has also been contended by the learned counsel for the applicants that the incident has taken place on 31-5-2001 and on 2-6-2001 Mst. Latifan the alleged victim had appeared before IXth Judicial Magistrate, Karachi (East) and sworn-in an affidavit disclosing that she being major and sui juris was neither kidnapped, abducted or enticed away by anybody but had left the house on her own accord as her father was a person of questionable character. He was callous cruel, harsh and greedy and wanted to sell her to some loose character person in order to earn money. She has also alleged that her father had previously committed rape with his daughter namely Mst. Hamida and thereafter he was having an evil eye on her. She has further stated in her affidavit that in order to save her modesty from cruel father, she married with Illahi Bux Mangi and came at the house of Ghulam Nabi Langah in order to seek refuge on humanitarian basis. The learned counsel for the applicants have also annexed a photostat copy of Nikahnama being attested by the learned counsel for the respective parties. The perusal of the Nikahnama shows that it was performed on 13-6-2001 before Nikah Registrar namely Qazi Haji Moin Ahmed located at M.A. Jinnah Road Karachi.
10. ' On 12-6-2001 Mst. Latif sworn in another affidavit disclosing that after seeking divorce from Illahi Bux Mangi she came to Karachi and entered into second marriage with second husband namely Muhammad Sharif on her free-will. On all these scores, the learned counsel for the applicants argues that it is a good case where the applicants could be enlarged on bail. It has been lastly contended that involvement of the applicants in the false case of this nature is due to mala fides and ulterior reasons on the part of police in collusion with the complainant party who are bent upon to disgrace, humiliate and put the applicants to mental torture.
11. ' I have given my anxious consideration to the arguments of the respective parties and perused the record. Admittedly all the sections applied in the F.I.R. Have no applicability on the facts and circumstances of this case excepting section 16, Zina (Enforcement of Hudood) Ordinance, 1979 which is punishable up to seven years and the same goes out of the prohibition as contained in section 497, subsection (1), Cr.P.C. Reference is made to a case of Syed Saifuddin Shah v. The State reported in 1982 PCr.LJ 792. In the cited case the accused were involved under section 380, P.P.C.
12. Which was not punishable with death, imprisonment for life or ten years and in such situation the bail was allowed as a matter of right. The above case is supported by three judgments of the Honourable Supreme Court namely Wali Muhammad v. State 1979 SCMR 233, Aijaz v. State 1977 SCM R 64, Manzoor v. State 1972 SCMR 81. The Honourable Supreme Court of Pakistan in the case of Wali Muhammad v. State, the bail was granted to the appellant charged with smuggling of large quantity of gold valued at about a crore of rupees on the ground that the offences in that case, were punishable with 6 years' R.I. In the maximum apart from fine, and that as a rule on a charge of a kind not involving a sentence of death or transportation for life bail should ordinarily be allowed disregarding the grounds of seriousness or anti-social nature of offence unless there be strong grounds in the shape of evidence for the belief that he is guilty.
13. ' In another case reported as Aijaz v. The State where the charges against the petitioner were under sections 419/420 and 468/471/409, P.P.C. And on his arrest Rs,1,70,000 were recovered from him, the Honourable Supreme Court made the following observations:- "... Mr. Zafar Mahmood presses for bail on the ground that the charges against the petitioner are not punishable with transportation for life. That is correct. On the other hand Mr. K.M. Lqbal opposes bail on the ground that the charges against the petitioner is of a grave nature because the amount embezzled was huge. No doubt the amount involved is large but by itself this would be no ground for refusing bail."
14. ' Lastly I may refer to the case of Manzoor v. State where the Honourable Supreme Court observed:- - "Bail in non-bailable offences is matter within the discretion of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case."
15. ' And the Honourable Judges in that case further held:-- "The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
16. ' The perusal of the F.I.R. Shows that Mst. Latifan has left the house of her father on her free-will without any pressure, coercion or threats issued from the side of applicants or anybody else and as such all the sections applied in the F.I.R. Have no applicability on the facts and circumstances of the case. The grant of bail in such cases is a rule while its refusal should be an exception. Again it was held that the basic rule is bail and not jail. Reference is made to a case State of Rajasthan v.
17. Balchand reported in AIR 1977 SC 2447. Reference is also made to a case o' ibal Muhammad Saeed v. State and others 1992 PCr.LJ 2086. Learned counsel in their arguments had advanced the plea of mala fides and involvement of the applicants due to ulterior reasons. It has been further argued that applicants are respectable persons of their locality and they apprehend an irreparable injury to their respect and reputation due to mala fide arrests on the part of police in collusion with the complainant party as they were motivated due to enmity. Applicants had also alleged that women folks of the applicants were arrested and illegally taken to the police station and that the police was bent upon insulting, humiliating and harassing the accused as was done by them in collusion with the complainant party in the past. Reference is made to a case of Jamaluddin and others v.
18. The State reported in 1985 SCM R 1949. In these circumstances, both the applications are allowed and order granting interim pre-arrest bail is confirmed on the same terms and conditions.