MUHAMMAD MUSA Versus MUHAMMAD RAMZAN

ORDER

1. Through this petition, pre-arrest bail allowed to the respondents has been assailed. According to the prosecution on the night between 617-1-1988 respondents by trespassing the house of the complainant took away clothes worth Rs.1,000. It is stated in the P.I.R. that on account of the pressure of the Bradri, the F.I.R. was not -lodged soon after the occurrence. Having failed to recover the stolen goods, the complainant was constrained to lodge the F.I.R. in this case. The Investigating Officer is present in this Court, I have perused 'the police file. It may be stated here that firstly Police Station Silanwali refused to register the case, but after taking oath on Holy Qur'an and after having satisfied themselves as to the truth of the occurrence, only 'then the case was registered. Before the commencement of the investigation in this case, respondents invoked the jurisdiction of the learned Additional Sessions Judge, Sargodha (Shahzada Kabir Ahmad) who after allowing interim bail to the respondents also confirmed the same. I have gone through the order impugned, it is regrettable to note that the learned Additional Sessions Judge has not at all cared to consult the law on the subject. The learned 'Additional Sessions Judge has observed that the crime is unnatural and the offence under section 457/382, P.P.C. does not fall within the prohibitory clause. Such observation certainly proves lack of serious application of mind. Offences under section 457, P.P.C. is punishable with 14 years and the offence under section 380, P.P.C. is' punishable with three years, while the offence under section 14 Offences-Against Property (Enforcement of Hudood) Ordinance, 1979 is punishable with five years. Grant of pre-arrest bail is governed by different considerations. This Court as far back as 1949 laid down the principle in the case reported as Crown v. Hadayat Ullah PLD 1949 Lah. 21 governing the grant of pre-arrest bail. The privilege of pre-arrest bail is never granted as a matter of routine, unless it can be shown that the case is mala fide. Same view was reiterated by the Supreme Court of Pakistan in the case reported as Zia-ul-Hasan v. The State P L D 1984 SC 192.

2. In this view of the matter, following the aforesaid judgments, and particularly, observing the lack of the application of mind of the learned Additional Sessions Judge, I would cancel the bail allowed to the respondents.

3. It is further pertinent to mention that on account of another reason, bail granted to the respondents is liable to be recalled, inasmuch as, the Investigating Officer has stated before me that the respondents did not join the investigation, and that they were relying upon the oath to be taken by certain persons to prove their innocence. It is also stated before me that it was admitted before the persons who were nominated to take oath that the house trespass was committed, but the complainant had exaggerated the value of the property. I would not further dilate upon this issue, and I would refrain myself to make observations lest it should prejudice either-side.

4. With these observations, this petition is allowed.

5. S.G.D/M-60/L Bail cancelled.