MUHAMMAD TUFAIL Versus State
ORDER
CH. IFTIKHAR HUSSAIN, J.-- Petitioner Muhammad Tufail through the instant petition has prayed for pre-arrest bail in case F.I.R. No.216 under section 365-B P.P.C. with Police Station Rangpur, District Muzaffargarh on 19-8-2009. Later on, the police have added section 376 P.P.C. in the same.
2. Briefly the prosecution case as per the F.I.R. is that on 15-8-2009, in the morning, Mst. Haseena Mai and her husband Muhammad Tufail have abducted Mst. Shumaila Kanwal, the daughter of the complainant to marry her with some unknown person and Zina with her.
3. It has been contended on his behalf that he has falsely been roped in with mala fide intention on the part of the complainant and in fact the alleged abductee being sui juris of her own accord has eloped with one Riaz Shah and had contracted valid marriage with him on 10-7-2009 and thereafter she had appeared before the Court of learned Addl. Sessions Judge, Multan on 5-9-2009 and there made statement to the effect that none has abducted her and rather she, of her own accord, has contracted marriage with Riaz Shah; that said Riaz Shah and his father Mushtaq Hussain Shah have been allowed post arrest bail by the learned Additional Sessions Judge, Muzaffargarh on 25-9-2009 i.e. about two days after their arrest; that after her such statement before the Court of learned Addl. Sessions Judge, it cannot be said that she either was abducted by anyone or had been subjected to Zina; that such circumstances itself indicates his false implication in the instant case and benefit of the same may be resolved in his favour; that he had joined the investigation; and that nothing is to be recovered from him.
4. Converse to that, learned D.P.-G. assisted by the learned counsel for the complainant has argued that he is very much named in the F.I.R, as one of the abductors of the lady; that Riaz Shah, his co-accused had been subjecting her to Zina- bil-Jabr and she had fully supported the story in her statement before the Magistrate and this circumstance itself is sufficient to implicate him (petitioner) with the alleged offence; and that such offence is covered within the prohibitory clause of section 497(1), Cr.P.C. However, it has been conceded that the petitioner has joined the investigation and is not wanted for any further purpose of the same.
5. I have carefully considered the submissions made on behalf of the parties and record perused.
6. There is an allegation against him of abduction of the lady along with his wife Mst. Haseena Mai. It is the plea from his side that she being sui juris in fact had eloped with one Riaz Shah and thereafter had entered into valid Nikah with him and had been living with him as his wife and under the pressure of his parents, she has made statement before the Magistrate in the line of the F.I.R, whereas the factual position is that she before the Sessions Court had brought petition for restraining her father and others from causing her undue harassment and that in the same, she had also mentioned that she of her own accord has entered into Nikah with him (Riaz Shah) and on such reasons, he and his father were allowed post-arrest bail after two days of their arrest and in support of such submission, the copy of Nikah Nama dated 10-7-2009 has been relied upon. The copy of the said Nikah Nama shows that Nikah between the lady and Riaz Shah was performed on 10-7-2009.
7. There is copy of the order dated 25-9-2009 recorded by the learned Addl. Sessions Judge, Muzaffargarh on the post-arrest bail petition of said Riaz Shah and his father Mushtaq Hussain Shah annexed to the petition. The operative part of the same reads as under:
"(5) The arguments advanced before the Court have been duly considered, with reference to the record. Mst. Shumaila Kanwal filed a petition under section 22-A, Cr.P.C. on 29-8-2009 before the learned Sessions Judge, Multan, which was entrusted to Mr. Muhammad Ashraf Gill, learned Additional Sessions Judge Multan. She put appearance along with her counsel, besides putting her thumb-mark, she also put her signature on the marginal side of order sheet of the said learned Court. In paragraph No.1 of the petition, referred to above, Mst. Shumaila Kanwal admitted that on 10-7-2009 she has contracted marriage with Riaz Hussain and her father and brother were against that marriage and they were bent upon to involve her husband in some forged criminal case. The learned Additional Sessions Judge Multan vide order dated 5-9-2009 directed the police not to cause any sort of harassment to her (Mst. Shumaila Kanwal) and accordingly that petition was disposed of. From the drift of her statement recorded by the Magistrate under section 164, Cr.P.C. she admitted her travelling from Muzaffargarh to Multan under the alleged threat of her life whether she was under certain force or voluntarily went with the petitioners, is a question which shall be determined at trial stage. The presumption of truth is attached to the judicial proceedings. Once she admitted before the Sessions Court that she has contracted marriage with Riaz Hussain Shah voluntarily, her other version taken before the Magistrate under section 164, Cr.P.C. cannot be given much weight at this bail stage. Besides above all, she has filed a suit for jactiation of marriage where it shall be decided whether she has contracted marriage with petitioner Riaz Hussain Shah or her marriage is forged. All above facts make the case of petitioners opened to further inquiry, hence the instant petition is accepted and petitioners Riaz Hussain and Mushtaq Ahmed Shah are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of this Court. File be consigned to the record room after due completions."
8. The above position shows that the observation of the learned Addl. Sessions Judge on 25-9-2009, was that she in para No.1 for her petition under section 22-A Cr.P.C. filed on 29-8-2009, has mentioned that she on 10-7-2009, has contracted marriage with Riaz Shah and his father and brother have been involved in a false/forged criminal case. The learned Addl. Sessions Judge, Muzaffargarh perhaps was influenced by such situation and he was considered to observe that their case is open to further inquiry into their guilt.
9. I have the least hesitation to say here that said observation of the learned Addl. Sessions Judge is very much beneficial to the case of the petitioner. Although it is one for pre-arrest bail but I am very much certain in my mind that such observation directly goes to the root of the allegation against him and certainly makes his case as well as one of further inquiry into his guilt as the same suggests that the lady had eloped with the said Riaz Shah and contracted valid marriage with him as mentioned above. Hence, the question that if he can be held liable for the said offence of her abduction. The mischief of subsection (2) of section 497, Cr.P.C. thus is amply attracted to his case. This circumstance is sufficiently reflective of existence of mala fide on the part of the complainant and furnishing reason for his involvement in the case.
10. He statedly has joined the investigation and is not wanted for any further purpose of the same as the alleged abductee had got recorded her statement and she had appeared not only before the Sessions Court but also the Magistrate.
11. In these circumstances, the case for extension of pre-arrest bail to him has been made out. The instant petition, therefore, is accepted and the ad-interim pre-arrest bail already granted to him is hereby confirmed subject to his furnishing fresh bail bond in the sum of Rs.100,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Muzaffargarh. He, however, shall join the investigation, if and when so required.
12. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case as trial.
N.H.Q./M-815/L Pre-arrest bail granted.