Muhammad Yousaf vs The State & another
This matter concerns a petition for pre-arrest bail filed by the accused, Muhammad Yousaf, in a case involving allegations of abduction and rape under Sections 365-B and 376 of the Pakistan Penal Code, 1860. The core legal question was whether the petitioner was entitled to pre-arrest bail given the evidence presented, specifically the significant delay in reporting the incident, the existence of a Nikah Nama predating the alleged abduction, and the complainant's pregnancy. The Court held that the prosecution's narrative was prima facie negated by the documentary evidence of a valid marriage and the statement of the Nikah Khawan recorded under Section 161 of the Code of Criminal Procedure, 1898. The Court emphasized that in the socio-cultural context, the possibility of false implication could not be ruled out, especially given the ongoing litigation regarding the validity of the marriage. Consequently, the Court confirmed the pre-arrest bail, establishing the principle that where substantial documentary evidence contradicts the prosecution's story and suggests a matrimonial dispute rather than criminal abduction, the accused is entitled to the concession of pre-arrest bail.
- Whether pre-arrest bail can be granted when there is a significant, unexplained delay in the registration of the FIR?
- Does the existence of a Nikah Nama predating the alleged abduction constitute sufficient grounds to grant pre-arrest bail?
- Can a criminal case for abduction and rape be prima facie negated by evidence of a valid marriage and ongoing family court litigation?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
Through this petition, Muhammad Yousaf the petitioner seeks pre-arrest bail in case FIR No.97 dated 07.05.2015 for offences under Sections 365-B & 376 of The Pakistan Penal Code, 1860, registered with Police Station Noshera Jadeed District Bahawalpur.
2. Shortly, the allegation against the present petitioner as per crime report is that on 15.12.2014 at about 05:00 p.m. He along with his co-accused being equipped with firearms abducted the complainant and kept on committing rape with her, who on finding opportunity made her escape good and came to her parents' house.
3. Having heard the learned counsel for the parties, I have perused the record.
4. This Court, during the arguments, has observed that admittedly the complainant is carrying seven months Pregnancy and the baby in her womb is of the present petitioner. The occurrence as narrated in the crime report took place on 15.12.2014 but the matter was reported to the police after the delay of more than five months without any justified explanation. The petitioner has also placed on record the registered 'Nikah Nama' which reflects the date of 'Nikah' as 30.11.2014, i.e. Prior to the date of alleged abduction of the complainant. Nikah Khawan, Tufail Ahmad Khan joined the investigation on 30.07.2015 and got recorded his statement under Section 161 of The Code of Criminal Procedure, 1898, verifying the factum of voluntary 'Nikah' between the spouses with their free will and consent which prima-facie negates the prosecution story. In the socio-cultural background of the area, possibility of false implication of the present petitioner by the complainant at the instance of her parents having no care about the legitimacy of the baby being carried by their daughter, cannot be ruled out. The petitioner has joined the investigation with his plea of valid 'Nikah'. Suit for restitution of conjugal rights filed by the present petitioner and that of jactitation of marriage filed by the complainant are still pending adjudication before the learned Family Court.
During investigation on 22.05.2015 it has been brought to the notice of Investigation Officer as contended by the learned counsel for the petitioner that 'Sharai Nikah' between Muhammad Makki (brother of the complainant) and Mst. Aalia (sister of the petitioner) has also been solemnized prior to the registration of this criminal case. Pre-arrest bail of Muhammad Younas and Muhammad Asghar, co-accused persons has already been confirmed by the learned court of first instance vide order dated 20.06.2015.
5. For what has been discussed above, the instant bail petition is allowed and ad-interim pre- arrest bail already granted to Muhammad Yousaf, petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000/ with one surety in the like amount to the satisfaction of learned trial court.
However, the observations recorded supra are tentative in nature which are meant for disposal of this bail petition only and shall not influence the learned trial court in any manner.