Mst. HAKIM JAN vs The STATE
This petition was filed by the complainant seeking the cancellation of pre-arrest bail granted to the respondent by the Additional Sessions Judge, Mansehra, in a case involving allegations of abduction and rape under sections 365-B, 376, and 34 of the Pakistan Penal Code 1860. The core legal question was whether the lower court exercised its discretion correctly in granting pre-arrest bail despite the serious nature of the allegations and the evidence on record. The Peshawar High Court held that the lower court erred in its assessment, noting that the accused had failed to demonstrate any mala fide on the part of the complainant and that the allegations of abduction and forced nikah were supported by the record. The Court emphasized that while bail granted by a competent court is generally not interfered with, it must be recalled if granted in violation of established legal principles. The Court ruled that the accused was not entitled to the extraordinary concession of pre-arrest bail for such heinous crimes of moral turpitude, and consequently, the bail was cancelled and the respondent taken into custody.
- Can a court cancel pre-arrest bail if it was granted in violation of established legal principles?
- Is an accused entitled to pre-arrest bail when facing charges of heinous crimes involving moral turpitude?
- Does a delay in lodging an FIR automatically entitle an accused to pre-arrest bail in cases involving family honor?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' WAQAR AHMAD sETH, J. Petitioner Mst. Hakim Jan has filed this petition for cancellation of pre- arrest bail granted to respondent No.1 by learned Additional sessions Judge, Mansehra on 6-4-2013 in case F.I.R. No.123 dated 18-3-2013 under sections 365-B/376/34, P.P.C. Police station Balakot.
2. As per contents of F.I.R., the nikah of complainant was performed in January, 2012 with one Mian Khan and rukhsati has yet to take place whereas she was abducted by respondent No. 1 and his other co-accused firstly in the month of July, 2012 and secondly on 20-11-2012.
3. Arguments heard and record perused.
4. The nikah of complainant with one Mian Khan stands proved on record. The abductee was abducted from the house of her in laws, meaning thereby that Mian Khan is the husband of the abductee. The respondent during the subsisting of said nikah abducted the petitioner twice and allegations of abduction and forcibly nikah stand proved on record. The accused had not even alleged any mala fide on the part of complainant in seeking his pre-arrest bail nor it was mentioned therein as to why he has been involved in the case. Abductee in her statement had given details of occurrence and fully implicated the accused respondent in the crime, which is not denied rather plea of 2nd nikah had been taken.
5. No doubt, there is a delay in lodging the report/F.I.R. But reports in such like cases have been made at the risk and cost of family B honour and future of the victim. Case of accused respondent is one which falls, within the barring provisions of section 497, Cr.P.C. Normally the bail granted by the Court of competent jurisdiction is not interfered with, but if it is found that the same has been granted in violation of the established principles for the grant of bail and the law on the subject, the superior courts would not hesitate interference. The accused respondent has committed heinous crime of moral turpitude, which is also against the injunctions of Islam and in no case he was entitled to the extraordinary concession of pre-arrest bail. The learned Additional sessions Judge drawing wrong inference in not coming forward of Mian Khan, the husband of the abductee, wrongly and illegally extended the concession of pre-arrest bail to the respondent. The impugned confirmation of pre-arrest bail order is liable to be set aside.
6. Consequently, this bail cancellation application is allowed and pre-arrest bail granted to respondent is recalled. The respondent present in court is taken into custody and handed over to local police for carrying out the investigation in the case.