Shad Ayaz Khan Versus State
This matter concerns a petition for post-arrest bail filed by the accused, Shad Ayaz Khan, charged under Section 496-A of the Pakistan Penal Code 1860 for the alleged enticement of a married woman for illicit intercourse. The core legal question was whether the prosecution had established a prima facie case sufficient to deny bail, specifically regarding the intent required under Section 496-A. The Court observed that the alleged abductee's statement under Section 164 of the Code of Criminal Procedure 1898 failed to allege that she was taken for illicit purposes, which is a central ingredient of the offense. Furthermore, the Court noted procedural lapses, including the failure to adhere to Section 164(1A) of the Code of Criminal Procedure 1898 regarding the accused's opportunity to cross-examine, and unexplained delays in the investigation. Consequently, the Court held that the case fell within the scope of 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898. The principle laid down is that where the essential ingredients of an offense are not supported by the available record, the case warrants further inquiry, entitling the accused to bail.
- Does the absence of an allegation of illicit intent in a statement under Section 164 Cr.P.C. undermine a charge under Section 496-A of the Pakistan Penal Code 1860?
- Is a statement recorded under Section 164 Cr.P.C. without providing the accused an opportunity to cross-examine, as per Section 164(1A), sufficient to deny bail?
- Does a case of 'further inquiry' under Section 497(2) Cr.P.C. arise when the essential ingredients of the charged offense are not clearly supported by the record?
- Section 496-A, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 164(1A), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
Muhammad Tariq Afridi, J .--- Through the instant bail petition, the accused/petitioner Shad Ayaz Khan son of Dilawar Khan, seeks post-arrest bail in case FIR No. 103, dated 27.02.2025, registered under Section 496-A P.P.C. at Police Station Domail, Bannu. The petitioner had earlier approached the learned Additional Sessions Judge-III, Bannu, for the same relief, but his plea was declined vide order dated 15.01.2025, hence the present bail petition.
2. Brief facts of the case as per the FIR, are that on 24.02.2025, complainant Noor Jamal Khan reported to the local police that on 19.02.2025, early in the morning he left his house to sell billets and received a mobile call from Yousaf Khan around 08:30 a.m. informing him that his wife, whom he had been married for 15 or 16 years and with whom he had four daughters had left home. He rushed home and discovering his wife was gone, suspected, she had eloped with someone unknown to him, potentially to commit Zina. The delay occurred in reporting the incident because the complainant and his relatives were busy searching for his missing wife. The complainant after satisfying himself, believed that his wife had been enticed away by the accused for the purpose of committing fornication.
3. Arguments heard and record perused.
4. Perusal of the record reveals that the alleged abductee, Mst. Shakin Marana returned home on 22.3.2025 and recorded her statement under section 164 Cr.P.C before the Magistrate on 26.3.2025, wherein, she did not mention that she was enticed or abducted by the accused for the purpose of illicit activities. Section 496-A P.P.C. criminalizes the enticement or concealment of a married woman with intent that she may have illicit intercourse. The central ingredient is not merely the abduction or unlawful confinement but the specific intent for illicit intercourse, which must be positively asserted or inferred from evidence. In the present case, although the abductee has narrated that she was taken away and detained against her will yet she has not alleged that she was taken with the intent of illicit relations, nor has she made any accusation that would attract the penal provisions of Section 496-A P.P.C.
5. The accused was arrested by the police on 27.02.2025 and the complainant wife returned home on 22.3.2025, while her statement under section 164 Cr.P.C was recorded on 26.3.2025, with a 4-days delay. Notably, the Magistrate did not summon the accused from jail to provide him an opportunity to cross-examine her as required by section 164 (1A) Cr.P.C. Therefore, in the peculiar facts and circumstances of case, such statement of the complainant's wife may not influence/affect bail.
6. The record does not provide information about the whereabouts of the complainant's wife from 27.02.2025 (accused's arrest) to March 22, 2025 (her return home). Similarly, wife's statement under section 164 Cr.P.C was recorded 04 days after she returned home, but the record lacks any explanation or justification for such delay. Given the lack of information about the wife's whereabouts from 27.02.2025 to 22.03.2025, combined with the unexplained delay in filing the FIR and recording her statement under section 164 Cr.P.C (without following section 164 (1A) Cr.P.C her statement cannot be relied upon for bail decisions without a plausible explanation being offered during the trial.
7. In light of the foregoing discussion, this Court is of the considered view that a case of further inquiry, within the meaning of Section 497(2) Cr.P.C., is made out in favor of the petitioner. Consequently, the instant bail petition is accepted, and the accused/petitioner is admitted to post-arrest bail, subject to furnishing bail bonds in the sum of Rs. 100,000/- (Rupees One Lac) with two sureties in the like amount to the satisfaction of the Illaqa Judicial Magistrate/MOD.
JK/99/P Petition allowed.