' HASNAT AHMAD KHAN, J.--- Muhammad Khawar Bashir, the petitioner, by submitting this application, has sought for concession of pre-arrest bail in the case F.I.R. No,507 of 2008, dated 1-7- 2008, registered at Police Station Sargodha Road, Faisalabad, in respect of an offence under section 496-B, P.P.C.
2. At the outset it is observed that this is the third application for pre-arrest bail, the first one bearing Criminal Miscellaneous.No,9263/B of 2008 was dismissed due to non-prosecution vide order, dated 6-10-2008, whereas the second bail application bearing Criminal Miscellaneous.No,9381/B of 2008 was dismissed as withdrawn vide order dated 9-10-2008.
3. Briefly the prosecution's story as unfurled in the F.I.R. Registered on the written application of Sharafat Ali-complainant is that on 1-7-2008 the complainant's niece, namely Huma alias Sukhan, was abducted by the petitioner along with his co-accused; that on establishing contact with Bashir Ahmed, co-accused, he confessed to have abducted the aforesaid Huma but refused to deliver her custody to the complainant and that at the time of her abduction, the abductee was having ornaments of gold valuing 2,50,000 and an amount of Rs,2,00,000 in cash.
4. In support of this application, learned counsel for the petitioner submits that Ms. Huma, the alleged abductee, being a sui juris girl of 21 years had married the petitioner of her own volition vide a registered Nikahnama dated 16-4-2008; that the said abducte.e submitted an application, dated 3-7-2008 before an Area Magistrate, Lahore for recording her statement under section 164, Cr.P.C.; that on the said application, Mr. Naeem Iqbal Syed, learned Special Judicial Magistrate recorded her statement under section 164, Cr.P.C.; that in her said statement Huma Hassan, the alleged abductee owned her marriage with the petitioner; that thereafter, Huma Hassan, the alleged abductee, along with the petitioner himself filed Writ Petition No,8975 of 2008 before this Court for quashing of the F.I.R. , which was duly entertained by this Court; that during the pendency of the said writ petition, the respectables intervened and on their insistence the custody of the abductee was delivered to the complainant through a Panchayat; that thereafter the abductee was threatened and pressurized to make statements in favour of the complainant; that on the pressure of the complainant-party the alleged abductee has already filed a suit for jactitation of marriage against the petitioner challenging the genuineness of the Nikahnama relied upon by him and that it is the Judge Family Court who has to decide the fate of the said Nikahnama, therefore, the petitioner is entitled to concession of pre-arrest bail.
5. Conversely, learned counsel appearing on behalf of the complainant has opposed the bail application tooth and nail by submitting that the petitioner has not come to the Court with clean hands, inasmuch as, he had been playing hide and seek with the Courts; that the abductee being a married lady could not marry the petitioner without dissolution of her earlier marriage; that during the investigation, the Nikahnama relied upon by the petitioner was found to be a fabricated document; that after retrieval of the abductee through Panchayat, she made a statement under section 164, Cr.P.C. Disowning the contents of the Nikahnama relied upon by the petitioner; that in the said statement, the abductee claimed that she had been forced by the petitioner to sign certain documents on gunpoint; that she further claimed in the said statement that the earlier statement made by her under section 164, Cr.P.C. Was procured by the petitioner under pressure and that in these circumstances the petitioner is not entitled to the relief of pre-arrest bail.
6. Heard. Record perused.
7. I have observed that this is a case of two versions. The petitioner claims that the abductee had married him voluntarily vide a registered Nikahnama, which was contracted before the lodging of the F.I.R., whereas the complainant claims that the petitioner abducted a married lady, whose Nikah had already been solemnized with one Mohsin Ali. At this stage, it has been noticed that the said Mohsin Ali did not opt to lodge the F.I.R. Regarding the abduction of his wife. The application in hand is also being opposed by the complainant himself. Even today, the said Mohsin Ali is not in attendance, rather, the complainant himself is present in the Court along with his counsel. The contents of the F.I.R. Suggest that at the time of her abduction, Rukhsati of abductee had not taken place and according to the complainant only her Nikah had been performed with the said Mohsin Ali a day earlier before the alleged occurrence. The Nikahnama relied upon by the petitioner is duly thumb-marked and signed by her. At no stage she has claimed that she did not sign or thumb- mark the same, rather, according to her, she was forced by the petitioner to sign certain documents. Admittedly, the abductee appeared before the learned Special Magistrate, B Lahore and got her statement recorded under section 164, Cr.P.C. However, after joining her parents, she is now claiming that the said statement was procured by the petitioner under the pressure but a perusal of the said statement reveals that her statement was recorded by the Magistrate after due compliance of the relevant provisions of law. Presumption of correctness is attached to the judicial proceedings.
8. It is also an admitted fact that the abductee filed a writ petition along with the petitioner with a prayer to quash the F.I.R. Registered on the application of her uncle. On the first date of hearing, she appeared before the Court and after putting certain questions to her regarding her age and the Nikahnama, the said writ petition was entertained. On the said date of hearing the alleged abductee did not utter even a single word regarding any pressure exerted upon her to file the said writ petition. However, during the pendency of the said writ petition, her custody was delivered to the complainant party, whereafter, she appeared before this Court along with the complainant and disowned her Nikahnama but on both the occasions her statement was not recorded by this Court with a view to avoid prejudice to either of the parties. Nevertheless, due to the changed circumstances, learned counsel for the writ petitioner withdrew the said writ petition on 5-12-2008.
It is true that during the investigation the concerned Nikah Khawan made a statement against the petitioner upon which the said Nikahnama was found to be a forged document by the investigator but the fact remains that it is not the case of the petitioner that the Nikahnama was never signed or thumb marked by the alleged abductee. It is also noticeable that on at least two occasions, the said abductee owned her marriage before this Court as well as the Magistrate. Now, she has filed a suit for jactitation of marriage before a Judge Family Court. Ultimately, it is the saia Court, which has to decide the question of genuineness or otherwise of the Nikahnama relied upon by the petitioner. Besides, criminal liability of the petitioner is dependent upon the result of afore-said suit.
See Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95.
9. Admittedly, the abductee is in the custody of the complainant, therefore, the physical custody of the petitioner is not required by the investigator for effecting recovery of the abductee.
10. Insofar as the allegation regarding the theft of the gold ornaments and net cash is concerned, the said allegation also requires further enquiry, for, according to the complainant at the time of her abduction, the abductee had gone for a morning walk. Normally, it is not conceivable or at least believable that one would carry such a heavy amount or gold ornaments while going for a morning walk.
11. All the facts narrated above, clearly show that a case of further enquiry has been made out in favour of the petitioner within the purview of section 497(2), Cr.P.C., to say the least. After making out a case of further enquiry, the petitioner has become entitled to bail as a matter of right.
Besides, in the peculiar circumstances of the case when the abductee had been changing her stance from time to time, dismissal of certain pre-arrest bail applications filed by the petitioner due to his nonappearance would not disentitle him to get concession of pre-arrest bail, especially, when law of bail is not a static law, therefore, while deciding the question of grant of pre-arrest bail the Courts cannot be oblivious of the facts of the case.
12. Consequently, while relying upon the cases of Meeran Bux v. The State and another PLD 1989 SC 347, Muhammad Ismail v. Ghaus Bux 1990 PCr.LJ 2013 and Aftab Gul v. The State 1989 PCr.LJ 1599, the application in hand is accepted and the ad interim pre-arrest bail allowed to the petitioner vide order dated 17-12-2008 is hereby confirmed but subject to his furnishing fresh bail bonds in a sum of Rs,100,000 (rupees on hundred thousand) with one surety in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court.