MUHAMMAD HASSAN SHAH and another vs STATE and another
The petitioners sought pre-arrest bail in a case registered under Sections 365-B and 376 of the Pakistan Penal Code 1860, alleging abduction and Zina. The core legal question was whether the petitioners were entitled to pre-arrest bail in light of the contradictory statements and conduct of the alleged abductee, who had earlier acknowledged her free-will marriage with petitioner No. 1 before judicial forums and later made a statement under Section 164 of the Code of Criminal Procedure 1898. The Lahore High Court held that the case warranted further inquiry given the unreliability of the abductee's shifting stances and the verified Nikah Nama on record, confirming the pre-arrest bail already granted to the petitioners. The key principle laid down is that where an alleged abductee voluntarily contracts marriage and acknowledges the same before judicial forums, subsequent contradictory statements under Section 164 of the Code of Criminal Procedure 1898 make the case one of further inquiry under Section 497 of the Code of Criminal Procedure 1898, justifying the confirmation of pre-arrest bail.
- Whether pre-arrest bail can be confirmed when the alleged abductee has voluntarily contracted marriage with the petitioner and acknowledged the same before judicial forums?
- Does a subsequent statement under Section 164 of the Code of Criminal Procedure 1898 override earlier judicial admissions of marriage for the purpose of bail?
- Is a case considered one of further inquiry when the alleged victim changes her stance repeatedly before different courts?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 22-A, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioners Muhammad Hassan Shah and Zamir-ulHussain Shah seek pre-arrest bail in case FIR No, 215 dated 19.07.2012 under Sections 365-B/376, PPC registered at Police Station City Kabirwala District Khanewal.
2. Briefly stated the allegations as contained in the FIR against the petitioners are that on 25.06.2012 the petitioners alongwith co-accused abducted Mst. Zamiran Mai daughter of the complainant for committing Zina with her.
3. The learned counsel for the petitioners contends that the alleged abductee Mst. Zamiran Mai had contracted marriage with the Petitioner No, 1 and she has been living with him as his legally wedded wife. The FIR was lodged with a delay of about 25 days which is not explained. The Nikah Nama dated 27.06.2012 is available on the record which has been verified and found to be correct.
The alleged abductee filed a petition under Section 22-A, Cr.P.C. before the learned Addl: sions Judge, Faisalabad and she appeared before the said Court and ade a statement that she being suijuris had contracted marriage of her own free consent with the Petitioner No, 1 and was living with him. She thereafter filed a suit for dissolution of marriage on 17.07.2012 however a compromise was effected between the spouses and she appeared before the Court and made a statement to withdraw her suit on 30.07.2012. After coming to her parents, she changed her stance and the petitioners have been falsely involved in this case on the allegations of abduction and Zina. The learned counsel prayed for grant of bail as it is a case of further inquiry.
3. The learned DPG assisted by the learned counsel for the complainant has vehemently opposed the petition and argued that the petitioners are not entitled to the extra ordinary concession of pre-arrest bail in view of the specific allegations contained in the statement of Mst. Zamiran Mai under Section 164, Cr.P.C.
4. I have considered the arguments advanced from both the sides and perusad the record.
5. The alleged abductee is not a trust-worthy girl. She has been changing her stance according to the circumstances on different occasions. If she had been abducted or subjected to Zina by the petitioners there was nothing to prevent her from informing the learned Addl: Sessions Judge Faisalabad when she appeared to acknowledge the Nikah. Then she also appeared before the learned Judge Family. Court and acknowledged her Nikah with the Petitioner No, 1 so all these documents being part of the judicial record cannot be easily belied just because at some subsequent stage the alleged abductee made a statement under Section 164, Cr.P.C. Keeping in view the conduct of the said abductee and the material placed before this Court, it is a case of further inquiry and the petitioners seems to have been falsely implicated in this case at the instance of parents of the alleged abductee. Sending them to judicial lock up would serve no good purpose except to put them to unjustified humiliation and harassment.. The allegations are yet to be proved during the trial. Nothing is to be recovered from the petitioners. The I.O. had already verified the genuineness of the Nikah Nama. Keeping in view all the facts and circumstances of the case, ad-interim pre-arrest bail already granted to the petitioners vide order dated 21.12.2012 is hereby confirmed subject to their furnishing bail bonds in the sum of Rs, 1,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial Court.
6. It is however clarified that the observations made herein are tentative in nature and shall have no effect on the merits of the case.