QALAB ABBAS MULTANI vs THE STATE and another
This criminal miscellaneous application was filed by the petitioner seeking post-arrest bail in F.I.R. No. 235 dated 26-7-2002 registered under sections 419, 420, 468, and 471 of the Pakistan Penal Code 1860 at Police Station City Abbottabad, relating to the preparation of a bogus Nikah Nama. The core legal question was whether the petitioner was entitled to post-arrest bail considering that the offences charged did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and that he had resiled from his earlier confessional affidavit citing duress and coercion. The Peshawar High Court held that the petitioner had made out a case for further inquiry and admitted him to bail. The key principle laid down is that where an accused charged with offences outside the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 resiles from an affidavit implicating himself by alleging duress and coercion, his case becomes one of further inquiry covered by subsection (2) of section 497, warranting the grant of bail.
- Whether offences under sections 419, 420, 468, and 471 of the Pakistan Penal Code 1860 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does a case become one of further inquiry when an accused resiles from an affidavit by alleging duress and coercion?
- Is an accused entitled to post-arrest bail when the charged offences do not fall under the barring provision of section 497 of the Code of Criminal Procedure 1898 and further inquiry is warranted?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' The present petitioner is charged vide F.I.R. No,235, dated 26-7-2002 under sections 419/420/468/471, P.P.C. Police Station City Abbottabad.
2. Short facts of the case are that Mst. Naz Parveen lodged a report against. Surwaiz son of Gulistan Nawanshahr for producing a bogus Nikah Nama with regard to the Nikah of her daughter Hamida Amir with the said Surwaiz. The present petitioner is a Nikah Khawan and he was arrested by the police. Thereafter he produced an affidavit to the Court stating that he had received Rs,1, 000 from Surwaiz accused and that Hamida Amir was not before him and the said Nikah Nama is bogus. The petitioner tried his luck for bail in the lower forums but with no success, hence this petition.
3. Counsel for the petitioner argued that the entry in the Register of Nikah has been made after 45 days of the Nikah and that the F.I.R. Has been lodged after 13 months. Moreover, the offences with which the petitioner is charged do not come under the barring provision of section 497, Cr.P.C. And that the petitioner has resiled from his affidavit. Counsel for the complainant argued that the petitioner has given an affidavit with regard to the bogus Nikah Nama with his own free-will and there was no duress and that the present petitioner has taken an active part in the offence.
Learned State Counsel at the very outset of the arguments frankly conceded that the moment the petitioner resiled from his previous affidavit alleging to be result of duress and coercion, the case hag become one of further inquiry.
4. I have heard the arguments of the learned counsel for the parties and have perused the record.
Admittedly, the offences with which the petitioner is charged do not fall under the barring provision of section 497, Cr.P.C. Moreover, the present petitioner through an application by A means of the Superintendent, District Jail, Abbottabad has resiled from his affidavit alleging that to be the result of duress and coercion and he has also given a statement in the Family Court with regard to the genuineness of Nikah, so on these scores the case of the accused-petitioner becomes one of further inquiry and in these circumstances he is admitted to bail to the tune of R3.2,00,000 with two sureties each in the like amount to the satisfaction of Ilaqa Judicial Magistrate.