MUHAMMAD YAR vs THE STATE and another
This is a petition for pre-arrest bail arising from a criminal case registered under section 496-A of the Pakistan Penal Code 1860, with subsequent addition of section 376, concerning the alleged abduction and enticement of the complainant's daughter, Mst. Kausar Bibi. The core legal question revolves around whether the petitioner has established sufficient grounds of mala fide and further circumstances to warrant the confirmation of pre-arrest bail, particularly in light of the alleged victim's conflicting statements before a Magistrate and the police. The court held that the victim's initial statements before the Magistrate made no mention of abduction and created a strong doubt regarding the prosecution's case, thereby inferring mala fide on the part of the complainant regarding the petitioner's false implication. Consequently, the court confirmed the pre-arrest bail. The key principle laid down is that mala fide for the purpose of pre-arrest bail can be validly inferred from the surrounding facts and circumstances of a case, including material discrepancies between a victim's statements before a Magistrate and subsequent police statements.
- Whether pre-arrest bail can be granted when the alleged abductee fails to mention abduction in her initial statements before a Magistrate?
- Can mala fide for the purpose of pre-arrest bail be inferred from the facts and circumstances of the case?
- Does an offence falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 outrightly bar the grant of pre-arrest bail when mala fide is established?
- Section 496-A, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
MANZOOR AHMAD MALIK, J.---Muhammad Yar, petitioner, seeks bail before arrest in case F.I.R.
No.773 of 2010 dated 9-11-2010 offence under section 496-A, P.P.C. Registered at Police Station City Depalpur, District Okara. Precisely allegation against the petitioner is that he along with his co- accused enticed away/abducted Mst. Kausar Bibi daughter of the complainant.
2. Learned counsel for the petitioner, in support of this petition, contends that as per F.I.R. Mst.
Kausar Bibi daughter of the complainant was enticed away/abducted on 8-11-2010; that as a matter of fact she was not abducted or enticed away by anybody which is clear from the statement which she made before the learned Magistrate on 10-11-2010 wherein she stated that she has been ousted by her husband after giving beating and even her parents have refused to allow her to live with them; that the alleged abductee further stated that she has serious apprehension to life and she wants to live in Darulaman; that in the said statement she did not say anything regarding her alleged abduction; that thereafter she again appeared before the learned Magistrate on 25-11-2010 and stated that she wanted to go to the house of her parents; that in both these statements there is no mention that said Mst. Kausar Bibi was abducted or enticed away by the petitioner or anybody; that the petitioner is owner of a plot in Lohariwala Depalpur which is close to the house of Muhammad Abdullah witness of this F.I.R. Who is pressurizing the petitioner to sell that plot in his favour on throwaway price and on his refusal, on the asking of the said Muhammad Abdullah a false case has been registered against the petitioner.
3. On the other hand, learned counsel for the complainant opposes this bail petition on the grounds that the petitioner is nominated in the F.I.R. With the specific allegation of abduction; that Mst.
Kausar Bibi victim got recorded her statement under sections 161 and 164 Code of Criminal Procedure wherein she fully implicated the petitioner in the commission of crime; that section 376, P.P.C. Has also been added in the F.I.R.; that there is no mala fide on the part of the complainant and there is sufficient incriminating evidence against the petitioner; that the petitioner has been found guilty during the course of investigation and the offence alleged against him falls within the prohibitory clause of section 497, Code of Criminal Procedure.
4. Learned Deputy Prosecutor-General though opposes this bail petition but states that the Police in its investigation has verified the fact that Mst. Kausar. Bibi made voluntary statements before the learned Magistrate on two occasions and in fact she has a liaison with the petitioner.
5. I have heard learned counsel for both the sides. It is mentioned in the F.I.R. That on 8-11-2010 Mst.
Naila Bibi alias Rani and Jameel Shehnaz came to the house of the complainant and enticed away daughter of the complainant namely Mst. Kausar Bibi, however, later on Muhammad Ramzan and Muhammad Abdullah informed him that Kausar Bibi had been enticed away/abducted by the petitioner and his co-accused. Said Mst. Kausar Bibi appeared before the learned Magistrate on 10- 11-2010 i.e. After registration of the F.I.R. And made a statement which is to the effect that her husband has turned her out of his house and even her parents are not allowing her to live with them and she has serious apprehension to her life. She further stated that she wants to live in Darulaman. She was sent to Darulaman. Then she made another statement before the learned Magistrate on 25-11-2010 wherein she stated that now she wants to go to the house of her parents as she has no apprehension to her life. In both these statements she has not mentioned anything regarding her abduction. These circumstances create doubt in the prosecution case. Though no specific mala fide has been alleged by the petitioner and he has stated that witness of the case namely Muhammad Abdullah is pressurizing him to sell his plot in his favour. But mala fide can be inferred from the facts and circumstances of the case. In this case the alleged abductee while appearing before the learned Magistrate on 10-11-2010 and 25-11-2010 has not stated anything regarding her abduction whereas in her subsequent statements, which were recorded by ,the police and under section 164, Cr.,. C, she has implicated the petitioner. In the circumstances, mala fide on the part of the complainant for false implication of the petitioner cannot be ruled A out.
Therefore, this is a fit case for the grant of bail before arrest. This petition is accordingly allowed and the ad interim pre-arrest bail already allowed to the petitioner vide order dated 11-1-2011 is hereby confirmed subject to his furnishing fresh bail bond in the sum of Rs.1,00,000 (rupees one lac only) with one surety in the like amount to the satisfaction of learned trial Court.
6. Before parting with this order, it is clarified that the observations made in this order are tentative in nature and relevant only for the disposal of this bail petition, which shall not influence the learned trial Court in any manner whatsoever.