Petitioners Faisal Rehman son of Ali Raza, and Umar Hayat son of Niaz through this petition under Section 497 Cr.P.C. seek bail after arrest in case FIR No, 60 dated 16.1.2007, for offences under Sections 365-A/364-A, PPC, registered at Police Station City, Chakwal. Relief of bail has been declined to the petitioners by the learned Special Court Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory vide order dated 29th August, 2008, hence this petition.
2. As per facts disclosed in the FIR recorded on the complaint of Qazi Umar Hayat son of Qazi Fazal Din, the allegation against the accused-petitioners was that petitioner Umar Hayat son of. Niaz abducted Mst. Ambreen and her brother Muhammad Asif and took them to Zhob in Baluchistan.
Subsequently the said petitioner and other accused were arrested and ransom amount of Rs, 21/2 lacs was recovered from Qamar Hussain.
3. The learned counsel for the petitioners contends that the petitioners are innocent; they have not committed any offence; Mst. Ambreen and her brother accompanied Umar Hayat by themselves; that Umar Hayat and Ambreen entered into a valid marriage on 17.1.2007. Contends that Ambreen being sui juris was competent to contract Nikah with the petitioner Umar Hayat and he has not committed any offence. As far as Petitioner No, 1 Faisal Rehman is concerned, the learned counsel contends that he is not nominated in the FIR and there is no, evidence available in the hands of the prosecution to connect the said petitioner with the crime. The allegation against him was that he hired a taxi for the main accused Qamar Hussain. Further contends that they have been arrested from Zhob on 26th July, 2008 as in evident from Rept Roznamcha No, 21 dated 26.7.2008 but the arrest has been shown in the Police Station Chakwal.
4. The learned DPG opposed the petition for grant of bail by contending that Mst. Ambreen was born on 1.11.1993 and she was 13 years and 2 months of age at the time she was taken away by accused. FIR Ambreen with petitioner Umar Hayat is not valid because the same was got executed through undue pressure and influence by taking her to Zhob; she made her statement under Section 161 Cr.P.C. in which she implicated Umar Hayat petitioner therefore he is not entitled for bail.
Further contends that petitioner Faisal Rehman arranged taxi in which they reached the place of receiving the ransom which was distributed between the accused therefore he also played a vital role in the completion of the crime alongwith his co-accused; that the offence falls under the prohibitory clause of Section 497 Cr.P.C. therefore he too is not entitled to be released on bail.
5. I have heard the learned counsel for the parties and perused the record. As far as Umar Hayat petitioner is concerned he is nominated in the FIR and he has been declared guilty during investigation. He contracted marriage/Nikah with Mst. Ambreen whose date of birth is 1.11.1993 meaning thereby that she was 13 years and 2 months as per birth certificate available on the file.
She was taken to Zhob, Baluchistan. The question as to whether she had contracted marriage with the petitioner being sui juris or the Nikah was result of coercion and undue influence would be looked into at the time of trial because she in her statement under Section 161 Cr.P.C. has clearly denied the solemnization of Nikah with the petitioner and she has involved the said petitioner in the crime. Therefore, to the extent of Petitioner No, 2 Umar Hayat son of Niaz the bail petition is dismissed.
6. Now, coming to the bail petition of Faisal Rehman son of Ali Raza, it is observed that he is not nominated in the FIR. There is no allegation of abduction of Mst. Ambreen or her brother Asif. The only allotment against the said petitioner is that he had arranged a taxi driven by Amin taxi-driver and he was to receive the share out of the ransom 'amount. Whether he had arranged taxi with any intention to provide assistance to the other accused and was privi to the crime'is a question of further inquiry into his guilt, particularly when no amount of ransom was recovered from him. There are not reasonable grounds to believe that the petitioner Faisal Rehman had committed the offence for which he has been charged but there are grounds of further inquiry into the guilt of the petitioner falling his case under Section 497(2) Cr.P.C. This being so, by allowing the application to the extent of Faisal. Rehman, he is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (Rupees one lac with one surety in the like amount to the satisfaction of the trial Court/Deputy Judge.