MUHAMMAD HANIF vs STATE etc.
The matter arises from a pre-arrest bail petition filed by the petitioner, Muhammad Hanif, seeking pre-arrest bail in FIR No. 298/2010 registered under Section 365-B of the Pakistan Penal Code 1860 at Police Station Arifwala, District Pakpattan Sharif, on the allegations of abduction, theft, and rape. The core legal question centers on whether the petitioner is entitled to pre-arrest bail when a valid marriage (Nikah) is claimed, a Nikah Nama is presented, prior legal proceedings including a joint application under Sections 22-A and 22-B of the Code of Criminal Procedure 1898 show the complainant's presence, and civil litigation regarding the marriage is pending between the parties. The Lahore High Court held that the circumstances surrounding the Nikah, the delay in lodging the FIR, the joint appearance of the parties in court, and the pending litigation render the commission of the alleged offence doubtful, entitling the accused to the benefit of doubt at the bail stage. Consequently, the court accepted the petition and confirmed the interim pre-arrest bail. The key principle laid down is that where documentary evidence such as a Nikah Nama and prior judicial proceedings cast serious doubt on the veracity of allegations of abduction and rape, and the matter involves ongoing matrimonial litigation, the accused is entitled to pre-arrest bail.
- Is an accused entitled to pre-arrest bail when a Nikah Nama and subsequent matrimonial litigation render the allegations of abduction and rape doubtful?
- Whether delay in the registration of an FIR, coupled with prior joint proceedings of the parties, can be a ground for confirming pre-arrest bail?
- Can the benefit of doubt be extended to an accused person at the pre-arrest bail stage?
- Section 365-B, Pakistan Penal Code 1860
- Section 22-A, Code of Criminal Procedure 1898
- Section 22-B, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
The petitioner/Muhammad Hanif seeks pre-arrest bail in a case arising out of FIR No, 298/2010, dated 1.5.2010, registered in Police Station Arifwala, District Pakpattan Sharif, under Section 365-B PPC.
2. Succinctly, the allegation against the present petitioner leveled by the complainant/Mst. Zubaida Bibi, in the FIR, is that on 4.3.2010, at about 10.30 a.m., the said petitioner alongwith the co-accused abducted her for the purpose of committing illicit intercourse. The accused are also alleged to have stolen Rs 20,000/- and gold ornaments weighing 5 tolas. The complainant further alleged that the present petitioner had been committing rape with her and got her thumb impression on blank papers.
3. Learned counsel for the petitioner submitted that there is a delay of about two months in the registration of the case as the occurrence took place on 4.3.2010 and the FIR was lodged on 1.5.2010.
He further submitted that the complainant, who is not only a maternal cousin of the petitioner but also, being major and sui-juris; contracted valid marriage with the petitioner according to Sharia Muhammadi, out of her free will, vide "Nikah Nama" dated 4.3.2010. He maintained that Mst. Zubaida Bibi/complainant alongwith the petitioner filed an application under Sections 22-A. and 22-B Cr.P.C. in the Sessions Court, Lahore, wherein she appeared alongwith the petitioner and put her thumb impression on the order sheet dated 10.3.2010. He pointed out that the petitioner has also obtained an ex-parte decree for restitution of conjugal rights against the present complainant on 11.6.2010.
He argued that the allegation of the commission of the alleged offence against the present petitioner is totally false and the petitioner has been implicated by the complainant with mala fide intentions under the undue pressure of her parents.
4. Conversely, the learned counsel for the complainant as well as the learned DPG opposed the instant petition on the ground that the victim has herself lodged the instant FIR and she has also fully supported her allegation in the statement recorded under Section 164 Cr.P.C. They further submitted that the complainant/Mst. Zubaida Bibi has filed a suit for jactitation of marriage. Lastly, they argued that the punishment of the offences, alleged to have been committed by the present petitioner, falls within the prohibitory clause of Section 497(1) C r. P. C .
5. Argument heard. Record perused.
6. Mst. Zubaida Bibi/complainant was allegedly abducted on 4.3.2010, whereas the petitioner has placed on record a copy of "Nikah Nama", which shows that the Nikah of said Mst. Zubaida Bibi was solemnized with the petitioner on 4.3.2010. It is strange that neither the parents nor any relative of Mst. Zubaida Bibi lodged an FIR immediately after the occurrence on 4.3.2010 and the FIR was lodged by Mst. Zubaida Bibi herself on 1.5.2010, after her alleged escape from the custody of the petitioner. Mst. Zubaida Bibi/complainant alongwith Muhammad Hanif/present petitioner filed an application under Sections 22-A and 22-B Cr.P.C. against SHO, .Police Station, Purani Anarkali, Lahore, wherein not only her presence has been marked but also her thumb impression is affixed on the order sheet dated 10.3.2010 of learned Additional Sessions Judge, Lahore.
7. Furthermore, Secretary, Union Council, Guldusht Colony (6), District Lahore, has issued a certificate on 28.5.2010 regarding the marriage of Mst. Zubaida Bibi with Muhammad Hanif on 4.3.2010. Additionally, not only the present petitioner has obtained an ex-parte decree for restitution of conjugal rights against Mst. Zubaida Bibi/complainant but also the, said Mst Zubaida Bibi has instituted a suit for activation of marriage against the present petitioner. The petitioner and the alleged victim are closely related to each other. In these circumstances, particularly, the litigation regarding genuineness of "Nikah Nama" dated 4.3.2010, the commission of the alleged offences by the present petitioner is doubtful. Needless to mention here that the benefit of doubt is to be given to an accused even at bail stage. Hence, the instant pre-arrest bail petition, filed by Muhammad Hanif, is accepted and interim bail already granted to him is confirmed, subject to submission of fresh bail bonds in the sum of Rs, 1,00,000/-, with one surety in the like amount to the satisfaction of learned trial Court.