Through this petition under Section 497 Cr.P.C. the petitioners Maqbool Ahmed and Muhammad Tariq Maqsood sons of Muhammad Abdullah seek their post-arrest bail in case FIR No, 493-08 dated 30.10.2008 under Sections 365-B, 376-A, 452/34 PPC registered at Police Station Kot Addu, District Muzaffargarh.
2. The brief facts of the case as narrated in the FIR by Nazeer Ahmad son of Qadir Bakhsh complainant are that he contracted marriage of her daughter namely Mst. Sharfan Bibi with one Muhammad Asghar son of Bashir Ahmad but her Rukhsati did not take place. It is alleged that father of petitioners namely Abdullah had demanded the hands of Mst. Sharfan Bibi for Muhammad Tariq Maqsood, but he refused. It is further alleged that on 28.10.2008 at about Asar waila, he along with Riaz Ahmad and Muhammad Bashir were harvesting the rice crop when a white coloured car stopped near his house, out of which Muhammad Tariq Maqsood, (Petitioner No, 2), Fazal-ur-Rehman, Mst. Jamila sons and daughters of Abdullah along with one unknown person duly armed with deadly weapons trespassed into his house and forcibly removed Mst. Sharfan. She was boarded in the said car. The complainant and others were threatened not to come near the car and the car was proceeded towards north. Complainant further stated that he made efforts for the recovery of his daughter but of no avail.
3. Learned counsel for the petitioners submits that, in fact, Mst. Sharfan Bibi on her own free will and consent contracted marriage with Petitioner No, 2, Muhammad Tariq Maqsood on 30.10.2008. She also made an affidavit on 30.10.2008 which is annexed with the petition as Annexure "E". Further submits that complainant Nazeer Ahmad and the other family members were not happy on this marriage and subsequently, they prepared back dated fake and fabricated Nikahnama of said lady with one Muhammad Asghar on 18.10.2008. Further submits that Mst. Sharfan Bibi also filed a suit for jactitation of marriage against said Asghar on 7.11.2008 before the Judge Family -Court Kot Addu. He further submits that totally a false case has been lodged against the petitioners.
Petitioner No, 2 Muhammad Tariq Maqsood is the legally wedded husband of Mst. Sharfan Bibi and in this regard he also filed a suit for restitution of conjugal rights on 21.11.2008 which is still pending adjudication before the Judge Family Court Kot Addu. The learned counsel for the petitioners has also drawn the attention of the Court towards the statement dated 18.11.2008 of the alleged abductee, wherein she has not levelled any allegations of Zina against coaccused/Petitioner No, 1 namely Maqbool Ahmad who is the real brother of Muhammad Tariq Maqsood, Petitioner No, 2.
Lastly submits that petitioner's case is one of further inquiry, therefore, they should be released on bail.
4. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has opposed this petition on the ground that Mst. Sharfan Bibi had made a statement before the learned Sessions Judge, Muzaffargrah on 18.11.2008, wherein, she had levelled the allegation of Zina against the petitioners. Further submits that the victim Mst. Sharfan Bibi in her statements under Sections 161 and 164 Cr.P.C. has fully implicated the petitioners, therefore, they are not entitled to the facility of bail.
5. I have heard the arguments of learned counsel for the parties and perused the record.
6. It is apparent from the record that Mst. Sharfan Bibi contracted marriage with Muhammad Tariq Maqsood. Petitioner No, 2 on 30.10.2008. The photocopy of the he Nikahnama is on the file. Even this fact gets supports from the contents of the FIR, where the complainant has narrated that father of the petitioners namely Abdullah asked the hand of Mst. Sharfan Bibi for his son Muhammad Tariq Maqsood which shows that some kind of intimacy was already existed between Petitioner No, 2, Muhammad Tariq Maqsood and Mst. Sharfan Bibi as both are inter se first cousins. Mst. Sharfan Bibi, after marriage, had gone with Muhammad Tariq Maqsood, Petitioner No, 2, and she also filed a suit for jactitation of marriage against Asghar on 7.11.2008. She also filed an affidavit of her free will dated 30.10.2008 which is annexed as Annexure "E" with instant petition which shows her willingness to marry with Petitioner No,
2. The suit for restitution of conjugal rights filed by the petitioner Muhammad Tariq Maqsood is also still pending adjudication before the learned Judge Family Court.
7. It is apparent from the record that the alleged abductee Mst. Sharfan Bibi was recovered on 14.11.2008 by the police but her statements u/S. 161 and 164 Cr.P.C. were recorded with delay of three days, without any plausible explanation which throws cloud of doubt on the prosecution story. It appears that for three days, Mst. Sharfan Bibi was not ready to make statement against the petitioner Muhammad Tariq Maqsood who was her husband and perhaps for 3-days she was persuaded and pressurized to make a statement against the petitioners and ultimately the complainant succeeded in doing so.
8. Another factor which supports the case of the petitioners, is that FIR No, 364-2008 dated 14.11.2008 u/Ss. 452/354/148/149 PPC was registered against the complainant party on the behest of Kauser Parveen, the wife of Maqbool Ahmad, Petitioner No, 1 in which she alleged that the complainant alongwith his sons and other relatives entered their house for searching Mst. Sharfan Bibi and Petitioner No, 2 on 9.11.2008, which date has been wrongly mentioned as 9.10.2008 in the FIR.
9. As far as the case of the Petitioner No, 1, Maqbool Ahmad is concerned, no allegation of Zina has been leveled by the abductee in her statement dated 18.1.2008 (Annexure "G") against him. It also reveals from the record that petitioner Muhammad Tariq Maqsood also filed a petition under Section 491 Cr.P.C. before the learned Sessions Judge, Vehari on 10.11.2008, for the recovery of Mst.
Sharfan Bibi. It seems that Mst. Sharfan Bibi was forcibly taken by the complainant party before 10.11.2008 but the police showed the date of recovery of the alleged abductee as 14.11.2008 and even on that date the alleged abductee was not willing to make her statement which was ultimately recorded with three days' delay on 17.11.2008. Even otherwise, when the alleged abductee contracted marriage with Muhammad Tariq Maqsood Petitioner No, 2, who is her first cousin, how Maqbool Petitioner No, 1, who is already married, also happens to be the first cousin of the alleged abductee could have committed the Zina with her is mind boggling because in our society especially in Muslim Families the commission of such an embarrassed act is a rare phenomenon.
10.There is another important fact which goes in favour of the petitioners. Muhammad Tariq Maqsood Petitioner No, 2 was granted pre-arrest bail by ASJ on 15.11.2008, Kot Addu, but, later on, when Sections 376(i) and 452 PPC were added on 17.11.2008, the police arrested them. It is manifest from the record that the alleged abductee when she was living with Muhammad Tariq Maqsood made a statement in his favour and filed a suit for jactitation of marriage against Muhammad Asghar (alleged husband) and when she was forcibly taken away by her parents, under coercion she by taking a somer result male statements u/S. 161 and 164 Cr.P.C. against the petitioners. It is admitted position that still the suit for conjugal rights filed by Muhammad Tariq Maqsood, Petitioner No, 2, is pending adjudication before the Judge Family Court.
11.As discussed above, the facts and circumstances of the case, make the case of the petitioner one of further inquiry within the ambit of sub-section (2) of Section 497 Cr.P.C. Accordingly, this petition is accepted and the accused/petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs, 3,00,000/- (three lacs) each with two sureties each in the like amount to the satisfaction of the learned trial Court/duty Judge.
12.However, before parting with the order it is clarified that the observations made in the above order are of tentative nature and the trial Court would decide the matter according to the facts of the case and un-influenced by this order in any manner.