ABDUL GHAFOOR vs STATE & another
This is a post-arrest bail petition filed by the petitioner, Abdul Ghafoor, facing charges under Sections 365-B, 376, and 494 of the Pakistan Penal Code 1860, involving allegations of abduction, Zina-bil-Jabr, and illegal marriage. The core legal question was whether the petitioner was entitled to the concession of post-arrest bail given the conflicting evidence regarding the victim's marriage and her subsequent statement under Section 164 of the Code of Criminal Procedure 1898. The Peshawar High Court dismissed the bail petition, holding that the petitioner was prima facie connected to the commission of a heinous offense. The court relied on the victim's statement recorded under Section 164 of the Code of Criminal Procedure 1898, which corroborated the allegation of forcible marriage and rape, and the documentary evidence of the victim's prior valid marriage to the complainant. The court affirmed that where a prima facie case exists for a heinous offense, and the victim's judicial statement supports the prosecution's allegations, the concession of bail should be refused, even if there are conflicting affidavits.
- Does a statement recorded under Section 164 of the Code of Criminal Procedure 1898 constitute sufficient grounds to deny post-arrest bail in cases of alleged abduction and Zina-bil-Jabr?
- Can a delay in lodging an FIR be excused when the contents of the FIR provide a reasonable explanation for the delay?
- Is an accused entitled to bail based on the principle of consistency if the prosecution has established a prima facie connection to a heinous offense through judicial statements?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 494, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
Through the present Cr.M/bail petition, petitioner Abdul Ghafoor seeks post arrest bail in case FIR No, 75 dated 16.04.2011 under Sections 365-B/376/494 PPC registered at Police Station Bagnotar.
2. Brief facts of the case are that complainant Muhammad Mushtaq on 16.04.2011 at 1330 hours reported the matter to the police in the shape of Murasila and alleged that he is working as labour in Karachi while his wife Mst. Tahmina Bibi was residing with his mother in the village Lassan. On 13.04.2011 at about 0900 hours his wife Mst Tehmina Bibi in absence of his mother had left the house. His mother Mst. Makhan Bibi on 14.4.2011 made report to the police and he was informed through telephone. He came to his house and upon search he found that seven tola gold ornaments, Rs, 50, 000/- cash and clothes were missing. He satisfied that his wife Mst Tehmina Bibi had been abducted by Nizakat son of Qalandar for the purpose of Zina and marriage. Later on during the investigation Mst. Tehmina Bibi as evident from her affidavit placed on file dated 14.4.2011 has contracted marriage with accused Abdul Ghafoor, however, later on she was produced before the Judicial Magistrate and got recorded her statement under Section 164 Cr.PC, according to which she has contracted marriage with the complainant. One Nizakat who sell the clothes called him on 13.4.2011 and told her that he is standing near Gal Dhok School but he was not present and after some time accused Azam came there and compel her to sit in a Suzuki and brought her to Muzafar Abad where they stayed in the house of her sister Mst. Rukhsana. She further alleged that on 14.4.2011 she was forced to perform Nikah with Abdul Ghafoor who committed Zina Bil-Jabr with her.
3. Learned counsel for petitioner contended that both the Nikah allegedly performed by petitioner is a matter of doubt. So far it is not clear that the alleged subsequent nikah of the petitioner with lady is void. He further submitted that the affidavit has also made the involvement of the petitioner doubtful. He also argued that co-accused in this case has been granted bail, therefore, keeping in view the principle of consistency the present petitioner is entitled to the concession of bail.
4. On the other hand, learned State Counsel assisted by learned counsel for complainant opposed the arguments advanced by learned counsel for petitioner and. submitted that the accused- petitioner has committed a serious and heinous offence and has forcibly entered into Nikah with Mst. Tehmina Bibi inspite of the fact that she was/is legally wedded wife of the complainant. He further referred to affidavit and statement of Mst. Tehmina Bibi recorded by the Judicial Magistrate under Section 164 Cr.PC in which allegation of Zina-bil-Jabr has also been raised.
5. I have heard the arguments of learned counsel for the parties and have gone through the available record.
6. Though the FIR was lodged with a delay of about three days but the contents of FIR itself explained the delay because the complainant was busy in searching of his wife Mst. Tehmina Bibi.
In such like cases delay do occur which is natural and would not effect the prosecution case. The affidavit is available on file. Mst. Tehmina Bibi was also examined under Section 164 Cr.PC on 25.4.2011. She has stated in her statement that she was forcibly seated in the vehicle and was taken to Muzafarabad. On 14.04.2011 the present petitioner forcibly performed Nikah with her. She also charged the petitioner for Zina-bilJabr. She had informed the petitioner of the earlier Nikah. Copy of the Nikah Nama obtained by the police reveals that Mst. Tehmina Bibi entered into Nikah with complainant Muhammad Mushtaq. Learned counsel for petitioner referred to affidavit dated 14.4.2011 which shows that Mst. Tehmina Bibi has owned the present petitioner as her husband. The statement of Mst. Tehmina Bibi recorded under Section 164 Cr.PC shows that she has charged the present petitioner for forcible Nikah and commission of Zina-bil-Jabr.
7. Keeping in view the above discussion, the present petitioner is connected with the commission of offence which is heinous in nature, moreover, the trial has commenced and at this stage it is not fair to record comments in bail matter. Resultantly, the present bail petition is dismissed. The trial Court is directed to complete the trial within three months positively.