ASHIQ HUSSAIN vs THE STATE
This matter comes before the High Court of Sindh through a pre-arrest bail application filed by the accused Ashiq Hussain apprehending arrest in case F.I.R. No. 150 of 2008 registered under sections 365-B, 494, 148, and 149 of the Pakistan Penal Code at Police Station Shahdadkot. The core legal question involves determining whether the applicant is entitled to confirmation of pre-arrest bail where the alleged abductee appeared in court, claimed to be sui juris, and stated she contracted a free-will marriage with the applicant, while the complainant and the alleged ex-husband failed to pursue the matter or substantiate allegations of a subsisting previous marriage. The court held that since the allegations were not substantiated and the state counsel could not controvert the ground reality of the valid marriage and lack of pursuit by the complainant, the interim pre-arrest bail should be confirmed. The key principle laid down is that pre-arrest bail will be confirmed where the primary allegations lack evidentiary substantiation during investigation and the alleged victim voluntarily contracts marriage as a sui juris person.
- Whether pre-arrest bail should be confirmed when the alleged abductee appears in court and states she contracted a free-will marriage as a sui juris person?
- Does the failure of the complainant and the alleged ex-husband to substantiate previous marriage allegations justify confirming pre-arrest bail?
- Can interim protection be extended to an alleged abductee who appears alongside the accused in a pre-arrest bail hearing?
- Section 365-B, Pakistan Penal Code 1860
- Section 494, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
1. ' KHAWAJA NAVEED AHMED, J.--- This pre-arrest Bail Application has been moved by accused Ashiq Hussain, who is apprehending his arrest in case F.I.R. No, 150 of 2008, under sections 365- B/494/148/149 P.P.C., Police Station Shandadkot.
2. The applicant has appeared before this Court along with the alleged abductee Zoya and has produced Nikahnama and has claimed that he had not abducted her but she being sui juris, out of her free-will has performed nikah with him and they both living as husband and wife. This Court order dated 1-8-2008 had provided protection to Mst. Zoya also, though there was no application on her behalf. It was ordered that she should also not be arrested in this case till further orders.
3. ' I have heard Mr. S.M. Iqbal, learned counsel for the applicant, Mr. Salim Akhtar, learned Additional Prosecutor General, Mr. Muhammad Bux, learned counsel for the State.
4. Learned counsel for the applicant states that the applicant being sui juris has exercised her free- will and performed nikah with the present applicant and as such has not committed any offence.
5. Mr. Salim Akhtar, learned Additional Prosecutor General and Mr. Muhammad Bux, learned counsel for the State have stated that one uncle of her Ex-husband after lodging F.I.R. Had put the government machinery into motion for recovery of the girl. They further stated that during four months period her alleged ex-husband has not appeared before the police or before the Court.
6. The complainant has also not come in Court and is not pursuing the matter. The applicant's wife is a young girl and has validly married with C the applicant. He is taking care of the girl and she appears to be happy. The allegation of her previous marriage and leaving the ex-husband without obtaining divorce has not been substantiated through evidence before the Investigating Officer by the complainant. Her ex-husband has not come forward up-till now.
7. ' In such circumstances, the learned counsel for the State as well as learned Additional Prosecutor General are not in a position to controvert the ground reality. As such, the interim pre-arrest bail granted to applicant Ashiq Hussain is hereby confirmed on the same terms and conditions.
8. ' Mst. Zoya wife of applicant has not applied for bail. The interim protection order issued in her favour earlier on 1-8-2008 shall continue till further orders. The applicant is directed to co-operate with Investigating Officer.