SHAMIM BIBI vs THE STATE
This matter arises from a criminal petition seeking the cancellation of pre-arrest bail granted to respondent No. 2 by the Additional Sessions Judge, Narowal, vide order dated 17-12-1999. The allegation against respondent No. 2 was that he committed Zina with the complainant's daughter, resulting in pregnancy and subsequent abortion. The core legal question was whether pre-arrest bail was rightly granted in a heinous offence where the accused was named in the F.I.R. and no mala fides were established against the complainant. The Lahore High Court held that the considerations for pre-arrest bail and post-arrest bail are different, and upon reviewing the circumstances, found that it was not a fit case for pre-arrest bail. The court consequently accepted the petition, set aside the order of the Additional Sessions Judge, and cancelled the pre-arrest bail granted to respondent No. 2, laying down that pre-arrest bail requires distinct considerations and cannot be granted casually in serious offences absent mala fides of the complainant.
- Are the considerations for the grant of bail before arrest and bail after arrest different?
- Whether pre-arrest bail can be cancelled when the accused is named in the F.I.R. for a heinous offence and no mala fides are shown on the part of the complainant?
- Does a case warrant further inquiry under section 497(2) of the Code of Criminal Procedure 1898 simply due to a delay in lodging the F.I.R. in a Zina case?
- Section 497, Code of Criminal Procedure 1898
ORDER
' This is an application for cancellation of pre-arrest to respondent No,2 by learned Additional Sessions Judge vide his order, dated 17-12-1999.
2. Allegation against respondent No,2 is that he committed Zina with Mst. Shamim daughter of complainant and she became pregnant. Upon coming to know of this fact, sister of respondent No,2 alongwith others got the child abortioned.
3. Learned counsel for petitioner submits that respondent No,2 is named in the F.I.R., he has committed a heinous offence, there is no mala fides on the part of the complainant to falsely involve respondent No,2 and that consideration for the grant of bail before arrest and bail after arrest are totally different.
4. Learned counsel for respondent No,2 submits that F.I.R. Is pack of lies, there is delay of 3 months in lodging the F.I.R. Without any proper explanation and that the order of learned Additional Sessions Judge is neither arbitrary, nor capricious or against the record. Further submits that according to school leaving certificate, date of birth of respondent is 4-1-1982 and that case of respondent is fully covered by subsection (2) to section 497, Cr.P.C. Which requires further inquiry into guilt of the petitioner. Adds that there were no fresh marks/signs of abortion, as per M.L.R.
5. Learned counsel for the State submits that nobody would implicate any person for committing the Zina with her.
6. I have heard learned counsel for parties. No mala fides or ulterior motive has been alleged against the petitioner. Zina was committed with the petitioner. Medical examination of petitioner was conducted on 24-11-1999 when the abortion was carried out on 13-10-1999. Considerations for the grant of bail before arrest and bail after arrest are totally different. It was not a case for bail before arrest. So, this petition is accepted and the order, dated 17-12-1999 passed by learned Additional Sessions Judge, Narowal are set aside and to respondent No,2 is cancelled. Any observation made in this order will not prejudice the case of either party in any future proceedings.