ABDUS SALAM vs MUHAMMAD FIRDOUS alias BABU MOHI and 2 others
This petition for leave to appeal challenged an order of the Peshawar High Court, Bench Abbottabad, which granted post-arrest bail to respondents Muhammad Firdous and Mst. Farzana Bibi, and also passed adverse remarks against the petitioner. The petitioner, who had married Mst. Farzana Bibi, discovered she was pregnant and suspected illicit intercourse, leading to a police case. Bail applications were initially rejected by the Ilaqa Magistrate and Sessions Judge but granted by the High Court based on Mst. Farzana Bibi's statement under Section 164, Cr.P.C., where she alleged the petitioner had sexual intercourse with her prior to Rukhsati. The Supreme Court, noting that no evidence other than her Section 161, Cr.P.C. statement connected the respondents to the offence, declined leave to appeal against the bail order. However, the Court found the adverse remarks against the petitioner to be prejudicial and unfair, thus ordering their deletion from the High Court's order.
- Can a High Court grant bail based on a Section 164 Cr.P.C. statement where it contradicts an earlier Section 161 Cr.P.C. statement and is the only evidence connecting the accused to the offence?
- Can adverse remarks passed against a party in a bail order be deleted by a higher court if they are found to be prejudicial and unfair?
- Is leave to appeal against a High Court's bail order warranted when the only evidence against the accused is a Section 161 Cr.P.C. statement and a subsequent Section 164 Cr.P.C. statement provides a different account?
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
MIR HAZAR KHAN KHOSO, J.---This petition for leave to appeal is directed against the order dated 18-5-1994 passed by the Single Judge of Peshawar High Court, Bench Abbottabad, whereby respondents Muhammad Firdous and Mst. Farzana Bibi were released on bail and certain adverse remarks were also passed against the petitioner.
2. It is case of the petitioner that the he got married with Mst. Farzana Bibi. Nikah and Rukhsati took place on 22-10-1993. However, while performing conjugal rights he found his wife to have distended stomach. He thus suspected that she was already pregnant. Respondent Mst. Farzana Bibi pretended that the swelling was due to stomach trouble. However, on her examination by a doctor she was found to be pregnant. The petitioner, therefore, moved an application before the Ilaqa Magistrate apprising him of her illegitimate pregnancy. The learned Magistrate sent the application to S.H.O., Police Station, and Abbottabad Cantonment for necessary action. The S.H.O.
Registered a case against Mst. Farzana Bibi. In her statement recorded under section 161, Cr.P.C. She disclosed that respondent Muhammad Firdausi had committed illicit intercourse with her.
Applications for her release on bail and that of Muhammad Fardous were rejected by the Ilaqa Magistrate as well as by the learned Sessions Judge, Abbottabad. On her own request her statement under. Section 164, Cr.P.C. Was recorded by a Magistrate. Ultimately she moved application for bail before the High Court. Her statement under section 164, Cr.P.C. Was again recorded by the Magistrate on the direction of the High Court. However on the basis of. Her 164, Cr.P.C. Statement she and her co-accused Muhammad Firdous were released on bail by the High Court on 18-5-1994 by two different orders. While disposing of Criminal Miscellaneous No, 124 of 1994 the learned High Court had passed certain adverse remarks against the petitioner. The petitioner has sought for leave challenging the release of the two respondents on bail as well as the adverse remarks.
3. We have heard Raja Shiraz Hussain Kayani, Advocate Supreme Court with Mr. Anwar H. Mir, Advocate-on Record, for the petitioner.
4. The learned counsel for the petitioner admitted that except 161 Cr.P.C. Statement of Mst. Farzana Bibi there is no other evidence to connect the two respondents with the offence. In her 164, Cr.P.C.
Statement respondent Mst. Farzana Bibi had alleged that the petitioner had sexual intercourse with her prior to Rukhsati. In such view of the fact we are not inclined to grant leave. However, the adverse remarks passed against the petitioner will certainly prejudice the case of the petitioner, which would be, indeed, unfair affair. We are, therefore, inclined to delete the adverse remarks from the order. Leave to appeal is declined. The petition stands dismissed.