MEHDI HASSAN vs THE STATE
The petitioner sought post-arrest bail in a case registered under Section 376 of the Pakistan Penal Code 1860, involving allegations of rape. The prosecution alleged that the petitioner and an accomplice abducted the complainant, subjected her to rape, and coerced her into signing documents. The petitioner contended that the complainant was his legally wedded wife, producing a Nikah Nama dated May 14, 2006, which predated the alleged incident. The complainant disputed the validity of this marriage before a Family Court. The Court held that the determination of the validity of the Nikah was a matter exclusively within the jurisdiction of the competent Family Court. Consequently, the Court found that the petitioner’s case warranted further inquiry into his guilt under Section 497(2) of the Code of Criminal Procedure 1898. Noting the petitioner’s period of incarceration and the tentative nature of the evidence, the Court granted bail, emphasizing that the commencement of trial does not preclude the grant of bail where the case otherwise merits it. The observations made were strictly tentative and limited to the bail application.
- Does the existence of a disputed Nikah Nama in a rape case warrant further inquiry into the guilt of the accused for the purpose of bail?
- Can an accused be granted bail even if the trial against him has already commenced?
- Is the validity of a marriage a question to be determined by a criminal court during bail proceedings or by a competent Family Court?
- Section 376, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
'CH. IFTIKHAR HUSSAIN, J.---Petitioner Mehdi Hassan through the instant petition has prayed for post arrest bail in case F.I.R. No,564 registered under section 376, P.P.C. With Police Station Sadar Sargodha on 26-12-2008.
2. Briefly the prosecution story as per the F.I.R. Is that on the night between 14/15-12-2008, he along with one Aslam scaled over the wall of the house of the complainant and took her to Chak No,109- Shumali, Sargodha and there they both had been subjecting her to rape and the next day at about 5.00/6.00 a.m., they took her to Chiniot in a vehicle and there under threat of life, obtained her thumb impressions and signatures on some papers and he (petitioner), thereafter, had again been committing rape with her.
After hearing the learned counsel for the parties and perusing the record, I find that although he is named in the F.I.R. With the above allegation but his case is that the complainant/lady is his legally wedded wife and he in this regard, relies upon the Nikah Nama annexed to the petition. According to the same their marriage was solemnized on 14-5-2006. It, thus, was much prior to the alleged incident and even the registration of the case. It is every body's case before me that she had gone to the competent Family Court with the plea of false pretence of marriage with her on the part of the petitioner and denies to have entered into valid Nikah with him.
4. Without adverting much to the correctness or otherwise of her such plea, I am very much clear in my mind that such question is always to be gone into by the competent Family Court. Any' verdict there from would determine the question of validity or otherwise of that Nikah.
5. Here I also have no hesitation say that till such time, the case against petitioner calls for further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497 Cr .P. C.
6. He is stated to be behind the bars since 17-3-2009. So, the period of his detention is spread over about six months.
7. I have been informed that his trial has commenced. Needless to mention here that mere commencement of trial can hardly be a clog in the way of an accused to seek bail particularly, when his case may otherwise be found fit for bail on the observation of further inquiry into his guilt.
In this regard, if any reference is needed, then the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 can be referred with advantage.
8. In this view of the matter, I find that case for his enlargement on bail has been made out.
Resultantly, I accept this petition and admit him to bail subject to his furnishing bail bonds to the sum of Rs,100,000 (rupees one lac only) with one surety in the like amount to the satisfaction of the learned Trial Court.
9. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.