TAJ-UD-DIN and another vs THE STATE and another
This matter concerns a bail application filed by two accused-petitioners, Tajud Din and Bilal, facing prosecution under Sections 496-A, 365-B, and 380 of the Pakistan Penal Code 1860, following allegations of abetting the kidnapping/enticement of a woman, Mst. Farida Bibi. The core legal question was whether the petitioners were entitled to post-arrest bail given the existence of a compromise deed and the evidentiary status of the alleged victim's marriage. The Court held that while the offences were not compoundable, the compromise could be considered a mitigating circumstance. Furthermore, the Court observed that the prosecution failed to substantiate the claim that the alleged victim was previously married, as a Nikahnama existed between the victim and the principal accused. Consequently, the Court found the case against the petitioners to be one of further inquiry, rendering their case arguable for bail purposes. The Court granted bail, establishing that where the prosecution's case regarding the victim's prior marital status is unproven and a compromise exists, the accused may be entitled to the concession of bail.
- Can a compromise in a non-compoundable offence be considered as a mitigating circumstance for the purpose of granting bail?
- Does the existence of a Nikahnama between the alleged victim and the principal accused make the case for abetment arguable for bail purposes?
- Is the absence of proof regarding a previous marriage a relevant factor when considering bail in kidnapping and enticement cases?
- Section 496-A, Pakistan Penal Code 1860
- Section 365-B, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
' MUHAMMAD ALAM KHAN, J.-Accused-petitioners Tajud Din and Bilal facing prosecution in case F.I.R.
No,220 dated 28-3-2008 under sections 496-A, 365-B & 380, P.P.C. Registered at Police Station, Pahari Pura, were refused bail by the lower forums. Now they have approached this Court for their release on bail.
2. Brief facts of the case are that on 26-3-2008 Ali Rehman alias Ali complainant reported the matter to the police to the effect that he along With his family members shifted from their village and are residing at Corporation Colony Peshawar; that one Miraj son of Khaista Rehman was their neighbour in the village and the said Khiasta Rehman demanded the hand of his sister Mst. Farida Bibi for his son Miraj which he refused because she had already been engaged with one Roohullah their relative and their Rukhsati was to be held after 15/20 days. On 24-3-2008 the complainant went to his office situated at Shalimar Plaza G.T. Road, Peshawar in connection with his property business when he was informed by his son namely Bilal Ali about the missing of Mst. Farida Bibi. On this the complainant returned to his home and found his sister missing. He searched for her and later on came to know that she has been enticed/kidnapped by Miraj accused for the purpose of marriage with him at the instance of Tajud Din, Bilal and Shamshad Begum.
3. At the very out set the complainant Ali Rehman alias Ali produced a compromise deed and submitted that he has effected compromise with the accused- petitioners with the intervention of the elders of the locality and he does not want to pursue the matter any further. The written compromise deed is Exh.PA. Which is placed on file. Joint statement of Ali Rehman complainant and elders of the locality namely Abdul Malik and Raza Khan was recorded, who endorsed the genuiness of the compromise. The offences are not compoundable and the compromise cannot be the sole ground entitling the accused-petitioners to the concession of bail but the same can however, be taken into consideration as a mitigating circumstance while considering the prayer of bail of the petitioners along with other grounds on the principle of forgive and forget as held in the case of "Mukhtar Ahmad and 3 others The State" reported in (1999 PCr.LJ 1107 (Lahore).
5. I have heard the learned counsel for the patties on merits as well as on the compromise submitted by them and have gone through the record with their able assistance.
6. Perusal of the record reveals that the petitioners have been charged for abetment and helping the enticement of Mst. Farida Bibi. There is a Nikahnama dated 24-3-2008. Showing the marriage of Mst. Farida the alleged abductee with Mirajud Din son of Khaista Rehman and nothing has been brought on record by the prosecution that she was previously married to Roohullah son of Tor Muhammad and the prosecution has yet to prove during trial the factum of previous Nikah or marriage of Mst. Farida, and this aspect of the case makes the case of the accused-petitioners arguable for the purpose of bail.
7. In view of the facts and circumstances of the case narrated above, this bail application is accepted and the accused-petitioners are released on bail provided they furnish bail bonds in the sum of Rs,3 lacs(rupees three hundred thousand) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall see that the sureties must be local, reliable and men of means.
' The above are the reasons for my short order dated 18-8-2008.
Cited by 1 case
- ZAHIR HYDER vs THE STATE 2010 YLR 1960