MUHAMMAD AMIN and 2 others vs The STATE
This post-arrest bail application was filed by three applicants in FIR No. 12 of 2012, registered under Sections 365-B, 452, 496-A, 147, 148, and 149 of the Pakistan Penal Code 1860, relating to an alleged forced abduction of the complainant's sister. The complainant alleged that the applicants along with co-accused forcibly abducted his sister from his house using deadly weapons. The applicants argued that the alleged abductee voluntarily appeared before a Judicial Magistrate and recorded a statement on oath affirming that she had left on her own free will and contracted a valid marriage with a co-accused, denying any forced abduction. The State and complainant opposed bail based on FIR nominations and statements of eyewitnesses under Section 161 of the Code of Criminal Procedure 1898. The High Court observed that in light of the abductee's explicit statement negating abduction and asserting a voluntary marriage, no case of abduction was made out against the applicants. The High Court accordingly allowed the bail application.
- Whether an accused nominated in an FIR for abduction is entitled to bail if the alleged abductee states on oath before a magistrate that she left voluntarily and contracted a valid marriage?
- Does an alleged abductee's statement denying forced abduction make out a case for grant of post-arrest bail to co-accused persons?
- Can bail be granted in offences falling under the prohibitory clause when the abductee negates the prosecution's allegations of forced kidnapping?
- Section 365-B, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 496-A, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' GHULAM MUSTAFA MENGAL, J.---The applicants Muhammad Amin son of Hazar Khan, Naik Muhammad son of Hazar Khan and Hazar Khan son of Gulzar Khan, seek bail in case F.I.R. No.12 of 2012 registered with Levies Thana, Spera Ragha, District Ziarat on 14th November, 2012 by complainant Musa Kaleem son of Mir Hazar under sections 365-B, 452, 496-A, 147, 148 and 149, P.P.C. With the averments that he resides in Killi Zargai and on 14th November, 2012 at 1-00 a.m. The accused persons Allah Noor, Muhammad Noor both sons of Muhammad Ramzan, Hazar Khan, Muhammad Ibrahim, Muhammad Amin sons of Gulzar Khan, Naik Muhammad son of Hazar Khan and others equipped with deadly weapons came to the house of complainant in two vehicles and forcibly abducted his sister namely Bibi Aliza, who was married to Rahatullah son of Muhammad Zahir and she had been taken away towards unknown place. Pursuant to such incident, F.I.R. Was lodged against the applicants along with other accused persons and they were arrested.
2. A bail, application was moved before the learned Additional Sessions Judge-IV, Quetta, who after hearing the parties, rejected the same vide order dated 27th November, 2012, hence, this bail application.
3. Ms. Mujeeb Ahmed Hashmi, learned counsel for the accused/applicants assisted by Mr. Khushal Khan Kasi, Advocate has submitted that the accused/ applicants are innocent and neither had they abducted the alleged abductee nor she was recovered from the accused/applicants. He further contended that on 30th November, 2012 statement of Mst. Aliza was recorded by learned Judicial Magistrate, Sibi on oath, wherein she categorically stated that on 11th November, 2012 she at her own gone with Allah Noor and subsequently she with her own consent and free will contracted a valid marriage with him, thus in such circumstances, benefit of doubt may be extended to the applicants for purpose of bail. Learned counsel for the accused/applicants has placed reliance on the case-laws as reported in 2005 PCr.LJ 31 (Ayeaz Ali v. State) and 2005 PCr.LJ 240 (Muhammad Mateen v. State).
4. On the other hand Messrs B.K. Marwat and Mehrullah Khan, Advocates appearing on behalf of the complainant have opposed -the bail application and has submitted that the accused/applicants are nominated in the F.I.R. With specific role, as such, they are not entitled to bail. He lastly prayed that the bail application may be dismissed.
5. Miss Sarwat Hina; learned Additional Prosecutor-General has strongly opposed the grant of bail.
She stated that the eye-witnesses namely Wakeel Ahmed and Muhammad Younus have implicated the accused/applicants in their statements recorded under section 161, Cr.P.C.
6. I have heard the learned counsel for the parties and with their assistance have perused the record of the case minutely. It may be observed here that merely bail has been rejected on the grounds that abductee namely Bibi Aliza is still in the custody of Allah Noor and other applicants and the Nikkah of Aliza with Allah Noor is disputed at this stage and the alleged offences fall within prohibitory clause and abductee has not been recovered. No doubt the accused/applicants are nominated in the F.I.R. With the specific role of abduction. It is an admitted position that the abductee appeared before the Judicial Magistrate, Sibi on 30th November, 2012 and in her statement recorded on oath she had stated that she had voluntarily gone with Allah Noor and claimed to have contracted a valid marriage of her own choice with Allah Noor. She also negates the allegations levelled in the F.I.R. By her brother. She expressly stated that she was neither taken away by force nor she had solemnized any Nikkah with any one else. This is also matter of record that the learned Judicial Magistrate, Sibi after recording the statement of alleged abductee, allowed her with her husband.
7. Keeping in view the statement of alleged abductee, I am of the view that no case of abduction is made out against the accused/applicant, as such, they are entitled to be released on bail.
Accordingly, this bail application is allowed and the accused/applicants are admitted on bail subject to furnishing surety in the sum of Rs.1,00,000 (Rupees, one lac) each and P.R. Of the like amount each to the satisfaction of trial Court.
8. Application stands disposed of in the above terms.