Sohail son of Shaldrullah, resident of Zando Dheri, Mardan, presently residing at Bara Banda, Tehsil and District Nowshera, seeks bail in case FIR No, 743 date 21.8.2007, Police Station Shahbaz Garhi, under Section 365-B PPC.
2. Briefly narrated the facts of the case are that on 21.8.2007 at 5.00 hours Mumtaz son of Dalair aged about 65/66 years r/o Zando Dheri, reported the matter to the police officer who was on `gasht', who recorded the murasila. The contents of the murasila reads as under: That Mst. Aalia daughter of Mumtaz, aged about 25/26 years who is major and had been engaged to Ikramullah son of Shakirullah resident of Zando Dheri, presently residing at Bara Banda, Tehsil and District Nowshera. The said Ikramullah had oftenly brought elders of the locality for the marriage ceremony of Mst. Aalia. As Ikramullah had contracted a second marriage, thus, the complainant used to refuse. On the day of occurrence the complainant was present in the mosque preparing himself for `fajar' prayers; that one Musafir near neighbourer of complainant informed him that Mst. Aalia daughter of the complainant had eloped with Ikramullah for the purpose of marriage. When the complainant went to his house, he verified this fact from Mst. Muslima, his wife, who confirmed that Ikramullah with the help of Sohail his brother, Shakirullah son of Noongeen, father of Ikramullah, had persuaded Mst. Aalia and had abducted her. The eye-witnesses were stated to be the women folk of the house.
3. On the basis of this murasila, FIR No, 743 dated 21.8.2007 was registered. The petitioner moved an application to Abdul Majid Civil Judge/Judicial Magistrate, who vide his order dated 26.10.2007 rejected the same. The petitioner then moved an application before Miss Mah Tallat, Additional Sessions Judge-II, Mardan, who vide order dated 24.11.2007 rejected the same. Sohail petitioner has moved the instant bail application requesting for his release on bail.
4. Farhad, relative of the petitioner has submitted detailed written arguments, placed on record. It was submitted that the allegations in the FIR reveals that it is not a case of abduction rather it is a case of elopement. Elaborating the arguments, it was next submitted that bare perusal of the FIR would reveal that when the first information was conveyed by one Mossier, neighbourer of the complainant, it was stated that Mst. Aalia ha .d gone with Ikramullah for the purpose of marriage.
She being sui juris aged about 25/26 years, as mentioned in the FIR, thus was a free and major girl.
She had already been engaged to Ikramullah and thus has gone with him of her own free will. It was also submitted that though she has gone with Ikramullah from a thickly populated village but neither she has resisted nor any lethal weapon was used for if the commission of the alleged offence. It was also submitted that the accused being a Government servant is behind the bar for the last four and a half months.
5. It was also submitted that pronouncements of the Superior court as embodied in the law declared, is very much clear that in such cases Courts have tentatively assessed data available on record, in or to determine, whether the allegations contained in the FIR statute an offence of abduction or make out the case of elopement. In h like cases when there is no allegation of rape, use of force and when accused is arrested and interrogated but nothing is recovered from accused by the prosecution, normally bail is granted as held in the e of Ghulam Nabi and others Vs. State and another (1984 PCr.LJ) and Peeran Ditta Vs. The State (1983 PCr.LJ 195).
6.Learned counsel for the complainant has sent a ruling of the ore High Court reported in 1987 M LD 3100 and on the strength of authority the Clerk of the learned counsel contended that the age of ged abducted when below 15 years and she has not been recovering detained illegally. In such like situation, the petitioner is not 'tied to the concession of bail.
7.Mr. Muhammad Saeed Khan Shangla, Additional Advocate neural for the State submitted that the accused-petitioner has been raged in the FIR. His two co-accused namely Ikramullah and his Shakirullah are still at large and further more the abductee has been recovered, thus the petitioner is not entitled to the concession bail. The learned two Courts below have rightly refused the session of bail to the petitioner. Relied on the case of Muhammad bar Vs. The State (1987 M LD 3125).
8. I have given my anxious consideration the facts of the present e and have gone through the record of the case with the assistance of learned Advocate General. A bare perusal of the FIR reveals that the of the alleged abductee has been admitted to be 25/26 years. This has also been admitted that she was engaged to Ikramullah which 1 be determined by the trial Court to be one of elopement or auction. At this stage without commenting upon the merits of the case that it may not prejudice the case of either prosecution or defence. ice it to say that the petitioner has made out a case for further airy which is discernable from the facts and circumstances of the taut case.
Resultantly, this bail application is accepted. Sohail petitioner is ferried to be released on bail provided he furnishes bail bonds in the of Rs, 1,00,000/- (one hundred thousands) with two sureties each in like amount to the satisfaction of Illaqa Judicial Magistrate, who 1 see that the sureties are local and men of means.