MUHAMMAD AKHTAR vs MUHAMMAD ASIF And Another
This petition sought the cancellation of pre-arrest bail granted to the respondent in a case registered under Section 496-A of the Pakistan Penal Code 1860, concerning allegations of abduction. The petitioner contended that the respondent had divorced his daughter, rendering their subsequent cohabitation illicit, and that the respondent had misused the bail concession by issuing threats. Conversely, the respondent argued that he remained the legally wedded husband of the alleged abductee, asserting that the divorce notice was ineffective and had been cancelled by the Union Council Administrator. Furthermore, the alleged abductee denied the abduction in her statements under the Code of Criminal Procedure 1898. The Court held that the order granting pre-arrest bail was based on a proper appraisal of facts, noting that the Union Council had cancelled the divorce notice and the alleged victim refuted the abduction charge. Consequently, the Court found no grounds to cancel the bail, emphasizing that the impugned order was neither whimsical nor fanciful, and dismissed the petition for lack of merit.
- Whether pre-arrest bail can be cancelled when the alleged victim denies the abduction in statements recorded under the Code of Criminal Procedure 1898?
- Does the cancellation of a divorce notice by a Union Council Administrator affect the legal status of the marriage for the purposes of a criminal charge of fornication?
- Is a pre-arrest bail order subject to cancellation if it is based on a proper appraisal of facts and is not whimsical or fanciful?
- Section 496-A, Pakistan Penal Code 1860
- Section 496-B, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER ORDER RAUF AHMAD SHEIKH, J.---The petitioner seeks cancellation of pre-arrest bail granted to respondent No.1 in case F.I.R. No.1442 of 2010, dated 24-12-2010, under section 496-A, P.P.C., Police Station South Cantt, Lahore.
2. The learned counsel for the petitioner has contended that respondent No.1 abducted his daughter so he lodged F.I.R. No.231 of 2010 but thereafter, a compromise took place. However, the respondent divorced his daughter on 6-8-2010 and a notice to the Union Council was given on 5- 9-2010 which issued a certificate on 4-12-2010 to the effect that the reconciliation proceedings did not bear fruit and the divorce had become effective. It is urged that after issuance of the certificate the respondent No.1 again abducted his daughter so he got registered the present case, in which the learned ASJ extended the extraordinary concession of pre-arrest bail without bringing into consideration all relevant facts. It is urged that if the case under section 496-A, Cr.P.C. Was not made out then the respondent No.1 and Mst. Jamila Bibi both were responsible for fornication punishable under section 496-B, P.P.C. It is urged in the writ petition preferred by respondent No.1 this Court had passed an order that statement of the alleged abductee and respondent No.1 be recorded and then the investigation be finalized and after thorough investigation the Investigating Officer had arrived at the conclusions that commission of the offence as alleged by the prosecution has been proved so the bail granted to the petitioner through order dated 11-1-2011 should be withdrawn. In support of the contention raised reliance is placed on 1996 SCM R 522 and 1990 M LD 204 (Lahore). It is further urged that respondent No.1 has misused the concession of bail and had been calling the petitioner from nick name, hurling abuses and extending threats.
3. The learned counsel for the respondent No.1 has vehemently opposed the petition. It is contended that the petitioner and Mst. Jamila Bibi are legally wedded husband and were and respondent No.1 had never pronounced the "Talaq". It is urged that notice of "Talaq" was served in his absence from the country and this contention has been accepted as true by the Administrator of the concerned Union Council who has cancelled the notice and declared that the divorce allegedly pronounced is ineffective. It is urged that in her statements under sections 161, Cr.P.C. And 164, Cr.P.C. The alleged abductee has categorically denied the allegation so the learned ASJ was fully justified in accepting the application for grant of pre-arrest bail.
4. Admittedly, the respondent No.1 and Mst. Jamila Bibi were husband and were. The alleged "Talaq Nama" is owned by the respondent and Mst. Jamila Bibi who has denied even the receipt of notice.
The administrator of the Union Council has cancelled the notice so it cannot be held that both of them are involved in fornication. The allegation of abduction in commission of Zina is also fully refuted by Mst. Jamila Bibi. The case-law cited at the bar is not applicable on the facts of the present petition. The order dated 11-1-2011 whereunder the respondent No.1 was granted pre-arrest bail is neither whimsical nor fanciful rather is based on proper appraisal of the facts involved in the matter. No ground for cancellation of bail is available. The petition is without merits and the same is. Hereby dismissed..