SAJID HUSSAIN vs The STATE and another
This petition under section 497 of the Code of Criminal Procedure 1898 seeks post-arrest bail in respect of FIR No. 2379/2016 dated 06.10.2016 registered under sections 496-A and 376 of the Pakistan Penal Code 1860 at Police Station Factory Area, Lahore. The core legal question concerns whether the petitioner is entitled to post-arrest bail where the alleged victim has contracted a valid Nikah with the accused subsequent to the alleged incident. The Lahore High Court held that since the alleged victim contracted a Nikah with the petitioner, verified by the investigating officer, and has not challenged the marriage before any forum, the matter falls within the domain of the family courts, making the petitioner's case one of further inquiry. The court laid down the principle that where a love marriage is prima facie established through a verified Nikahnama and affidavit without challenge from the alleged victim, further incarceration of the accused serves no useful purpose, warranting the grant of post-arrest bail under section 497(2) of the Code of Criminal Procedure 1898.
- Whether post-arrest bail can be granted under section 497(2) of the Code of Criminal Procedure 1898 when the alleged victim has contracted a Nikah with the accused?
- Is a family court the proper forum to resolve marital validity questions arising in criminal proceedings involving an alleged love marriage?
- Does the absence of any recovery and completion of investigation entitle an accused to post-arrest bail?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 496-A, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. the petitioner Sajid Hussain has sought bail after arrest in case FIR No,2379/2016 dated 06.10.2016 under sections 496-A, 376, P.P.C., Police Station Factory Area, Lahore.
2. The arguments advanced by the learned counsel for the parties have been heard and the record of this case has also been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. The allegation against the petitioner is that he abducted the daughter of the complainant Bashir Ahmad for illicit intercourse. After going through the record, it has been noticed by this Court that the alleged abductee Mst. Fatima Bibi has contracted Nikah with the petitioner on 10.10.2016 and in this regard copy of the Nikahnama is attached with this petition and the said abductee also given her affidavit in this regard. Nikahnama of the petitioner with the alleged victim has been got verified by the investigating officer from the concerned quarter. Admittedly, the alleged victim has not challenged the same before any forum till today as stated by learned counsel for the complainant which shows that she is still legally wedded wife of the petitioner. In such like situation, the family courts are the proper forum to decide the matter in question. Reliance in this regard is placed on case law titled as "Muhammad Azam v. Muhammad Iqbal and others" PLD 1984 SC 95. It is common practice in our society that parents of the girl usually got register FIR against the boy and his family members due to the grudge that their daughter had contracted love marriage. Nothing has been recovered from petitioner during investigation. Admittedly the petitioner is previous non-convict and never involved in any other case. He is behind the bars since 19.12.2016. Investigation of the case is complete and the petitioner is no more required for further investigation. His further incarceration in jail would not serve any useful purpose.
3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs,50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Trial Court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.