' RAJA FAYYAZ AHMED, C.J.--Accused Tai Muhammad has been admitted to pre-arrested bail by the learned Additional Sessions Judge-IV, Quetta vide order, dated 5-9-2000 (Criminal Bail Application No,291 of 2000) in Case Crime No,26 of 2000 registered under section 365-A/34, P.P.C.
On 8-6-2000 on the report of Mst. Lal Bibi/applicant. Mst. Lal Bibi has filed this application seeking for cancellation of the anticipatory bail confirmed by the learned Court vide above said order.
2. In the report it has been alleged by Mst. Lal Bibi that her son namely Muhammad Jan aged about 25/30 years about six years back went to Adda in his own Suzuki where he used to work for gain, but did no come back; thus, she and her husband Din Muhammad kept on waiting for the return of their son but in vain, and after three days Taj Muhammad and Mohim Khan, who were already known to her came to their house and asked that her son is missing to which she answered in affirmative and thereupon the aforesaid persons told to her that her son has been abducted along with the Suzuki from Adda, who further asked her to pay to them Rs, 3,00,000 and they will bring back her son. It has further been alleged in the report that she requested the said persons that she is a poor lady and her husband is an aged man, ultimately; in presence .Of Muhammad Akram, Yar Muhammad, Fateh Muhammad and Behwal it was decided that for the return of her son an amount of Rs,1,60,000 will be paid to them, which she paid to them. She also alleged that complete features of her son was also disclosed to her by Taj Muhammad and Mohim Khan and for a week after payment she kept on waiting, but the accused did not bring back her son where after, she approached to Nawabzaba Masood Shahwani, who called on the above said persons, out of whom only Taj Muhammad visited Nawabzada Masood and disclosed about the name of certain persons and Nawabzada stated to Taj Muhammad that he does not recognize such persons and ultimately; she approached to Nawab Aslam Raisani but the accused did not go there despite having been called on and thereafter, she stated to have approached to Sardar Aziz Umrani but the above said persons also did not care to go to him and; last year she approached to Police Station New Sariab for report but with no result and about six months back she again went to Police Station Sariab for report but no action was taken, and; ultimately she submitted application in the Hon'ble High Court.
' Miscellaneous Application submitted in the High Court was converted into C.P. (Suo Motu) No,15 of 2000 vide order, dated 5-6-2000 S.H.O. Police Station, New Sariab was directed to register case on the report of the petitioner/Mst. Lal Bibi with the further direction to investigate the same effectively and to make hectic efforts to recover the abducted. Accordingly; pursuant to the order of this Court F.I.R. No,26 of 2000 was registered on the report of the lady. Accused Taj Muhammad was admitted to pre-arrest ad interim bail on 17-6-2000 which from time to time was extended and finally vide Order, dated 5-9-2000 the interim anticipatory bail has been confirmed by the learned Additional Sessions Judge-IV, Quetta, operating part of the order is reproduced herein below:-- "I have gone through the record, which reveals that the present accused person Taj Muhammad was also kidnapped and some accused persons were nominated for that offence. The allegation that six years back accused person kidnapped Jan Muhammad and even after having received Rs,1,60,000 as ransom has not returned him needs prob. There is force in the submissions of the learned counsel that there are Reasonable doubts in the story/allegation of the complainant. The complainant allegedly paid the amount of ransom for release of his son and waited six long years and when he was not released, she lodged report. The prima facie the case is of further inquiry. The adinterim bail is hereby confirmed."
3. The learned counsels for the parties as well as Mrs. Ashraf Abbas appearing for the State have been heard. Applicant Mst. Lal Bibi submitted that she is a poor, old destitute lady who despite payment of ransom amount had been running pillar to post for the recovery of her abductee son and repeatedly approached to the accused and contacted many persons for the purpose but in vain and; also approached to the police officers but no one listened to her and ultimately having lost all the hopes she was advised to approach to the Court and pursuant to the order of the Court case has been registered against the accused. She further submitted that accused Taj Muhammad is directly involved in the commission of the offence who despite having received demanded amount did not release her son and may be that the abductee might have been killed.
But the learned Court without considering the facts of the case granted bail to the accused.
4. Mrs. Ashraf Abbas, the learned Advocate holding brief of the State submitted that the accused in view of the attending facts and the' circumstances of the case was not entitled to pre-arrest bail but the learned Court without keeping in view the well-settled principles of grant of anticipatory bail, on unsustainable grounds confirmed the pre-arrest bail which is liable to be re-called in the interest of justice.
5. Syed Ayyaz Zahoor, the learned counsel for the accused contended that admittedly after an unexplained delay of six years, applicant has approached to this Court for registration of the case in respect of the alleged abduction of her son and also there is no reason to believe that despite having knowledge about the involvement of the accused to whom allegedly ransom amount was paid, yet; the alleged breach of commitment did not move her to place her grievance before any authority or Court. According to the learned counsel application before this Court for registration of the case was filed out of mala fide and with ulterior objects in order to harass and humiliate the accused at the instance of the accused nominated in case Crime No,87 of 1995 with regard to the abduction of accused Taj Mohammad pending trial in the Court of learned Additional Sessions Judge-III, Quetta and in view of such background and in the peculiar features of the case discretion vested in the Court has properly been exercised. He placed reliance on a reported judgment of the Hon'ble Supreme Court i,e, 1983 SCM R 645.
6. Contention put forth by the applicant and the parties learned counsel have been considered in the light of the available documents and the record of the case/police investigation file made available to the Court by Mrs. Ashraf Abbas, has also been gone through with the assistance of the parties learned counsel. As hereinabove noted Miscellaneous Application submitted in this Court by the applicant was converted into C.P. (Suo Motu) No, 15 of 2000 and vide order, dated 5-6-2000 S.H.O. Police Station New Sariab was directed the register the case on the report of the petitioner/Mst. Lal Bibi in view of the accusation about the abduction of her son namely Muhammad Jan. In compliance with the order passed by this Court case Crime No,26 of 2000 has been registered on the report of the lady under section 365-A/34, P.P.C. On 8-6-2000 against the nominated accused (Taj Muhammad and Mohim Khan) against whom specific allegation has been made in the report that after three days of the missing of her son about six years back, accused Taj Muhammad and Mohim Khan approached and informed to her that his son has been abducted alongwith his Suzuki pick-up and they demanded ransom amount of Rs,3,00,000 for recovering/release of her son and ultimately she paid an amount of Rs,1,60,000 to the above said accused in presence of Muhammad Akram, Yar Muhammad, Fateh Muhammad and Behawal but despite having received the amount they did not bring back her son and thereafter she approached to Nawabzada Masood Shahwani and Nawab Muhammad Aslam Raisani but with no result. She submitted that in these circumstances about one and half years back she also went to the police station for report but no one listened to her and also last year she made similar attempt for registration of the case but in vain and ultimately she approached to this Court. P.Ws. Yar Muhammad son of Shah Muhammad, Bahawal Khan son of Alain Khan and Muhammad Akram son of Abdul Nabi in this statement recorded under section 161, Cr.P.C. Have supported to the accusation as contained in the F.I.R. That an amount of Rs, I ,60,000 was paid by the lady to the nominated accused for the release of her abductee son. The incriminating evidence available on record prima facie connects accused Taj Muhammad/respondent with the commission of the offence and the delay about non-registration of the case, keeping in view the circumstances narrated in the F.I.R. Also has been explained in respect of whereof further probe at this stage of proceeding would not be justified. Secondly; in absence of any material available on record of this case it is difficult to assume that the accusation has been made against the nominated accused by the mother of the abductee at the instance of the accused nominated in case Crime No,87 of 1995 in respect of the alleged abduction of accused Taj Muhammad pending trial in the Court of learned Additional Sessions Judge-III, Quetta nor any nexus between the applicant lady and the accused involved in the commission of the alleged offence regarding abduction of Taj Muhammad has been shown, consequently; case law relied upon by Syed Ayyaz Zahoor is not helpful to his contention. The incriminating material available on record referred to hereinabove coupled with the explanation about delaying her registration of the case disentitles accused Taj Muhammad to the concession of anticipatory bail in the and refusal of pre-arrest bail, as for want light of well- settled principles of grant of any material available on record about the apprehended arrest being motivated out of mala tides or with ulterior motives etc. Hence accused Taj Muhammad is not entitled to pre-arrest bail against whom sufficient incriminating evidence of his prima facie involvement exposing him to criminal liability is available.
Thus, in view of the above reasons anticipatory to accused Taj Muhammad by the learned Additional Sessions Judge-IV, Quetta vide order, dated 5-9-2000 passed in Criminal Bail Application No,291 of 2000 is recalled/cancelled. The observations made in this order are meant only for the disposal of the instant application seeking for cancellation of bail and are tentative in nature, which shall have no hearing on the merits of the case or on the application for bail after' arrest. If moved to the Court.
Bail cancelled.