MUSHTAQ Versus STATE
The petitioners have moved this petition for bail in a case registered against them under sections 147, 148, 363 and 366 read with section 149 of the Pakistan Penal Code.
2. The allegations are that on 15 th December, 1975 the petitioners who were variously armed forcibly abducted Mst. Saidan Mai from a field where she had gone for urinating. The statement of the abductee was recorded under section 164, Cr. P. C. wherein she stated that she had married with Mushtaq petitioner of her own free will and was living with him amicably. She did not make any allegation of abduction or kidnapping against arty of the petitioners.
3. The petitioners applied for bail before arrest before the learned Sessions Judge, Multan, but the same was refused on 4‑2‑1976 on the ground that the abductee was born on 9‑2‑196 1 and was under sixteen years of age at the time of occurrence. This petition for bail after arrest has been made in this Court without making an application before the learned Sessions Judge. The learned State Counsel has raised a preliminary objection that as the petitioners had not moved the learned Sessions Judge for bail after arrest, therefore, this petition is not maintainable. The Sessions Court and the High Court have concurrent jurisdiction in matters of bail and the ordinary principle is that the Court of inferior jurisdiction should he moved in the first instance. The learned counsel for the petitioners, however, states that a revision against the order of the learned Magistrate who is seized of the matter and a habeas corpus petition filed by the complainant for the recovery of the alleged abductee, are pending in this Court and there was no change in the circumstances after the arrest of the petitioners therefore, this petition has been properly filed in this Court. He further states that since the revision and the habeas corpus petitions are pending in this Court. therefore, the learned Sessions Judge would feel embarrassed if a petition is now made before him. The order of the learned Sessions Judge shows that the petition for pre- arrest bail was dismissed on merit. As two other matters between the parties are pending in this Court and there was no change in the circumstances of the case after the arrest of the petitioners and the petition has already been admitted, therefore, I proceed to decide it on merits.
4. The case of the prosecution is that Mst. Saidan Mai was born on 9‑2‑1961 and was under sixteen years of age at the time of occurrence. A certificate of vaccination placed on the record shows that Mst. Saidan Mai was vaccinated on 26‑2‑1961. and in this certificate her age is given as three years meaning thereby that she was born in early 1958. I am, therefore, of the view that the question regarding the age of the alleged abductee is open to further inquiry. In the circumstances of the case, I feel inclined to the view that it is a fit case for bail. Consequently, I admit the petitioners to hail in the sum of Rs. 10,000 (Rs. ten thousand) each with one surety each in the like amount to the satisfaction of Assistant Commissioner, Multan.
Petition allowed.