ABDUL SHAKOOR vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Abdul Shakoor, who is accused of rape under Section 376 of the Pakistan Penal Code 1860. The core legal question was whether the applicant was entitled to bail given the conflicting claims regarding the marital status of the alleged victim, Sania, and the existence of pending civil litigation concerning the validity of their alleged marriage. The Court observed that the victim had filed a suit for jactitation of marriage, and the applicant presented documentation supporting a prior marriage, creating a dispute over the marital relationship that required judicial determination by a Family Court. The Court held that because the allegation of rape was inextricably linked to the unresolved question of the parties' marital status, the case fell within the purview of further inquiry under Section 497(ii) of the Code of Criminal Procedure 1898. Consequently, the applicant was admitted to post-arrest bail. The key principle laid down is that where a criminal allegation hinges on a disputed marital status currently under adjudication in civil proceedings, the case warrants further inquiry, justifying the grant of bail.
- Does a pending suit for jactitation of marriage regarding the alleged victim constitute grounds for further inquiry in a rape case?
- Can a case be brought within the purview of Section 497(ii) of the Code of Criminal Procedure 1898 when the criminal allegation depends on the adjudication of a civil claim?
- Is the existence of conflicting documentation regarding a marital relationship sufficient to grant post-arrest bail in a case involving allegations of rape?
- Section 376, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(ii), Code of Criminal Procedure 1898
Salahuddin Panhwar-J:- Through instant application, applicant seeks post arrest bail in Crime No. 26/2018 under Section 376, 34 PPC, registered at Police Station Mobina Town, Karachi.
2. According to the FIR, allegation against the applicant/accused is that he committed rape with complainant's daughter namely Sania.
3. Learned counsel for the applicant, inter alia, contends that FIR is delayed about ten days; applicant contracted marriage with Sania in 2013, thereafter, he filed suit for conjugal rights in 2014, subsequently, mother of the victim arranged marriage of Sania with Abdul Sattar, who is residing in Saudi Arab. Since this marriage was run away marriage, thus mother of Sania was not happy and bail application is appended with Marriage Registration Certificate issued by Union Council, affidavit of freewill marriage dated 03rd October 2013, copy of conjugal rights suit and affidavit of no objection filed by the complainant with regard to grant of bail even affidavit of alleged victim which is verified by the Incharge Identification Surety Branch contending therein that they have settled their dispute excuria [out of the court] and have no objection if applicant is granted bail. In support of her case learned counsel has placed reliance case law reported as Muhammad Tanvir vs. The State and others [2017 SCMR 366].
4. Learned counsel for the complainant, in assistance of learned DPG, files certain documents showing therein that alleged victim is wife of Abdul Sattar and photographs of victim with applicant as well FIR No. 107 of 2014 and agreement with regard to return of money. Further he contends that suit for jactitation of marriage, filed by Sania, is pending before the Family Court, Karachi, Central. He has also submitted marriage certificate of Sania with Abdul Shakoor, issued by the concerned authority.
5. Heard and perused the record.
6. Admittedly, suit for jactitation of marriage filed by the victim Sania is pending adjudication, which confirms that there is a claim of applicant to be husband of victim Sania which made her (alleged victim Sania) to seek such declaration. Affidavits and photographs, appended with bail application, prima facie shows that the claim of the applicant/accused regarding a lawful marriage is not a mere claim but is backed / supported by certain documents and veracity of these documents is yet to be determined by the trial Court. Issue of two suitors could only be decided by the trial (Family) Court. The allegation of abduction or rape even shall entirely depend upon proper adjudication of such claims which, in such like cases, would be a sufficient ground to bring it (case) within purview of Section 497(ii) Cr.PC. Accordingly, this is a fit case of further inquiry, hence, applicant is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.200,000 (Two lac ) and PR in the like amount to the satisfaction of the trial Court.
Needless to mention that these are tentative assessment would not prejudice the merits of the case of either party.