MST. NARGIS Versus THE STATE
ORDER
Brief facts of this Criminal Miscellaneous Petition are that the petitioner is a citizen of Bangla Desh and she is involved in a case F.I.R. No.69/93 registered under section 3/2(A)/ 14, Foreigner Act, 1946. The petitioner was brought to Pakistan by one Abdullah who was not related to her in any way; she was brought to Karachi where the aforesaid case was registered against her and five others. She was bailed out by a Court of competent jurisdiction at Karachi through Abdullah and was later on sold in consideration of Rs.50,000 and thereafter she was brought to Ahmadpur Sharqia, District Bahawalpur where she was again sold to Shahid. Thereafter she met with one Mukhtar Ahmad and got married with her through a registered Nikahnama, dated 15-5-1996. Since this news was exposed to Abdullah, who got non-bailable warrant issued in the aforesaid case and the petitioner was arrested and is now confined in New Central Jail, Bahawalpur from 25-7-1996. She has applied for interim transitory bail after arrest so that she may approach the Court of competent jurisdiction at Karachi and pursue her case there.
2. Learned A.A.-G. on Court call is present. He submits that this Court has left with no jurisdiction to entertain the interim transitory bail after arrest as an ordinary practice under section 498 -A is that the bail moved to the Court should have jurisdiction to grant the same and it should be the Court of first instance. Learned counsel for the petitioner has placed reliance on Muhammad Amin v. The State 1973 PCr.LJ 661 where it was held that the general power of the High Court unless and until specifically curtailed by the Legislature, do remain intact and in fact even in most of the Special Acts the Legislature always being conscious of the powers of this Court makes a provision to that effect. No specific provision exists in the Criminal Procedure Code to the effect that the provisions of section 498, Cr.P.C. are excluded in case of a warrant issued by a Magistrate of a different province for the arrest of a person residing in another province, therefore, even by implication it cannot be said that the powers under section 498, Cr.P.C. in the circumstances, are curtailed in any way. He has also placed reliance on Muhammad Ayyub v. Muhammad Yaqub PLD 1966 SC 1003, where it was held by the Honourable Supreme Court that though powers under section 498 are ancillary and subsidiary to provisions of sections 496 and 497 or whether that section could be construed to extend that power of the High Court or the Court of Session to grant bail even in cases where these Courts would not be competent to grant bail under section 497. The learned Judges examined the true nature Qt scope of section 498. Their concerned opinion was that section 498 is not to be construed to extend the power of the High Court or a Court of Session to grant bail in cases where these Courts would not be competent to grant bail under section 497 of the Code, but their collective view was that generally the words "in any case" or "any person" occurring in section 498 of the Code should be given full effect and the limitations imposed by section 497 should not be held to govern section 498 of the Code. Therefore, it is ancillary or subsidiary to sections 496 and 497 of the Code. Therefore, the anticipatory bail attracts the provisions of section 497, Cr.P.C. Although the matter in question before their Lordships was a different one in that case. He also has placed reliance on Malik Mukhtar Ahmad Awan v The State 1990 PCr.LJ 617 and Ch. Allah Ditta v. The State 1989 PCr.LJ 2152.
3. The relevant point on the subject-matter 'regarding jurisdiction is whether an applicant residing in a territorial jurisdiction of this Court after his arrest can apply for the grant of interim bail when his warrants of arrest are issued by the Court in Karachi. The powers of the High Court and the Sessions Court are of concurrent jurisdiction and those of the trial Magistrate and the jurisdiction of the High Court is concurrent with the Sessions Court but still the ordinary practice is held to apply to the Court of first instance. However, his Lordship referred the question of jurisdiction of a Court under sections 498 and 491 to grant relief to the applicant before or after execution of the warrant issued by the Court outside the province.
4. I have heard learned counsel for the petitioner as well as learned A.A.-G. and have gone through all facts and circumstances of the case. This is an admitted fact that F.I.R. No.69/93 registered under section 3/2(A)/14, Foreigners Act, 1946 is pending adjudication before a Court of first instance at Karachi and non-bailable warrants we're issued from the same Court. The accused is confined in Bahawalpur Jail. She has been facing the pressure of a case which is pending before a Court at Karachi which was got registered by a black-mailer who brought her from Bangla Desh and the case was registered against her under the aforesaid provision of law. She was bailed out from the Court of Karachi through the help of the same gangester and under that very threat she has allegedly been sold from person to person and even when she decided to finally marry with one person she is again put behind the bars. This is not the case of the present accused. Thousands Bengali girls being illegal immigrants are facing the same miserable situation and them they come to inhuman wishes of the persons who have brought them from a different country and then sold them to different persons. The power of the High Court in respect of bail is large enough to give anticipatory bail to a person who deserves the same. Therefore, in view of the fact that she becomes independent from the clutches of the persons who have been throughout playing fouls with her and to approach the Court of competent jurisdiction in a more respectable and dignified way it is deemed in the interest of justice that she be allowed interim transitory bail because her detention in jail at Bahawalpur will not serve any useful purpose. I admit her to interim transitory bail in the sum of Rs.50,000 with two' sureties each in the like amount to the satisfaction of Sessions Judge, Bahawalpur. I also direct the petitioner after being bailed out from the jail she should approach the competent Court at Karachi within 15 days from the date of her release from the jail and get her self properly bailed out from that Court.
N.H.Q./N-39/L Bail allowed