ZULFIQAR ALT vs THE STATE and another
This is a criminal petition filed by the petitioner seeking pre-arrest bail in a case registered under sections 365-B and 376(2) of the Pakistan Penal Code 1860 at Police Station Rangpur, District Muzaffargarh. The core legal question is whether the petitioner is entitled to pre-arrest bail when the alleged abductee, being sui juris, contracted a marriage of her own free will and is residing with him, rendering the case one of further inquiry. The Lahore High Court held that the petitioner has made out a case for pre-arrest bail as the marriage and subsequent peaceful cohabitation of the alleged victim with the petitioner point towards mala fide on the part of the complainant and bring the matter within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898. Consequently, the court confirmed the pre-arrest bail previously granted to the petitioner subject to furnishing appropriate bail bonds.
- Whether pre-arrest bail can be granted when the alleged abductee has contracted a free-will marriage with the accused?
- Does a case become one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898 when the victim and accused are living as spouses?
- Whether mala fide on the part of the complainant warrants confirmation of pre-arrest bail?
- Section 365-B, Pakistan Penal Code 1860
- Section 376(2), Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' HAFIZ ABDUL REHMAN ANSARI, J.--- Through this petition, the petitioner seeks pre-arrest bail in case F.I.R. No,58 of 2007 dated 10-5-2007 registered at Police Station Rangpur, District Muzaffargarh under sections 365-B/376(2), P.P.C. At the instance of Muhammad Anwar son of Muhammad Hafeez, complainant/respondent No,2.
2. Brief facts as unfolded from the F.I.R. Are that Nikah of complainant's daughter Mst. Nighat Jabeen was performed with Aamir Hafeez on 13-4-2007. She was student of Government Vocational Training Institute, Rangpur, so Rukhsti could not take place. On 4-5-2007 at about 7-30 a.m. Complainant's daughter went to school with her brother. Zulfiqar, Mukhtiar and Muhammad Ali armed with pistols came and threatened them if they raised hue and cry they would be done to death. Mukhtiar and Zulfiqar boarded here forcibly in motorcar and went towards Muzaffargarh.
Complainant's son came and he narrated the story. Complainant along with other searched Mst.
Nighat Jabeen. Aqeel and Taukar came and they told that they had seen Mst. Nighat Jabeen along with Mst Musarat Bibi, Zulfiqar and Mukhtar in a car and the other accused were on a motorcycle.
Complainant asked the accused to return Mst. Nighat Jabeen but they refused. Hence, this F.I.R.
3. Petitioner applied for his ad interim pre-arrest bail before District and Sessions Judge, Muzaffargarh. The learned Additional Sessions Judge Muzaffargarh vide.Order dated 1-2-2008 refused to grant pre-arrest bail to the petitioner.
4. Learned counsel for the petitioner submits that alleged abductee Mst. Nighat Bibi contracted marriage with petitioner Zulfiqar with her own free-will and consent; out of wedlock Muhammad Muzammal was born who was expired after 3 months and Mst. Nighat Bibi is stated to be pregnant and likely to give birth to another child; that F.I.R. Is based on mala fide intention of the complainant on account of his bad repute and dishonour of his family has involved the petitioner and other in this false case; that no useful purpose would be served while keeping the petitioner behind the bars when his case was of further inquiry covered by subsection (2) of 497, Cr.P.C. That case has been registered on account of ulterior motive and mala fide on the part of complainant in connivance with the local police; that case against the petitioner requires further probe into the guilt, and hence, becomes a matter of further inquiry that local police is playing in the hands of complainant and wants to arrest the petitioner with mala fide intention and if the petitioner is arrested he would suffer humiliation an irreparable loss, therefore, the petitioners are entitled to the concession of pre-arrest bail.
5. Learned DDPP states that police has prepared the cancellation report in the light of statement of Mst. Nighat Parveen and learned Magistrate disagreed with the same consideration for grant of pre-arrest and post-arrest bail are entirely different; that petitioner could not establish any mala fide on the part of the complainant or on the part of the police to connect the present petitioner with the commission of offence; that the petitioner is nominated in the F.I.R. With specific role, therefore, the petitioners are not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. Alleged abductee Mst. Nighat Bibi being sui juris contracted marriage with petitioner Zulfiqar Ali with her own free will and consent. Out of wedlock Muhammad Muzammal was born, who expired after three months and Mst. Nighat Bibi is stated to be pregnant and likely to give birth to another child. F.I.R. Is based on mala fide intention of the complainant on account of his bad repute and his family he has involved the petitioner and others in this false case. No useful purpose would be served while keeping the petitioner behind the bars when his case is covered under subsection (2) of section 497, Cr.P.C. Case has been registered on account of ulterior motive and mala fide on the part of complainant with the connivance of the local police. Case against the petitioner requires further probe into the guilt, hence, becomes a matter of further inquiry. Allegedly, abductee Mst.
Nighat Jabeen is residing with the petitioner, both the spouses are enjoying peaceful matrimonial life. As Mst. Nighat Jabeen married with the petitioner against the whishes of her family members, so this false case against the petitioner was got registered.
8. Accordingly, this petition is accepted and ad interim pre arrest bail already granted to the petitioner vide order dated 2-11-2009 is hereby confirmed subject to furnishing bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of learned trial Court.
However, observations made above are of tentative in nature, will not prejudice the case of either side during the trial.