The legality and proprietary of an order passed by District Criminal Court Rawalakot dated 25.11.2010 has been called in question through instant revision petition.
The facts precisely stated are that Abdul Qadoos, the complainant, filed an F.I.R on 21.11.2006 at 6:30pm at Police Station Rawalakot alleging therein that on the same day he alongwith his wife and children came to Rawalakot while his way back to home at 'Topa' he received a telephonic call from his neighbor that his mother and sister have been abducted by Jabir Ashraf. Prior to the occurrence, at night a girl delivered a message on mobile phone asking his sister to reach `Chapri' at 9:00am to participate in the meeting of WWop NGO whereupon, his mother and sister Mst.
Kulsoom went to participate in the meeting. The complainant expressed his suspicion that his mother and sister have been abducted by Jabir Ashraf, his mother Mst. Makhmal Jan, sister Mst.
Guddo and his brother Shahid with an-intention to commit Zina with her and to receive ransom.
On this report, a case under Sections 10, 11, 16,
19. The Offence of Zina (Enforcement of Hadood) Act, 1985 was registered. After necessary investigation, the other accused persons (not before me) were sent to face trial before Tehsil Criminal Court Rawalakot whereas, the name of the petitioner alongwith some other accused was placed in Column No, 2 of the challan as absconders.
After arrest, the petitioner filed a bail application on 17.08.2010 before Tehsil Criminal Court Rawalakot which was dismissed vide order dated 28.08.2010. Feeling aggrieved and dissatisfied, the petitioner presented another bail application before District Criminal Court Rawalakot on 03.09.2010 which was also dismissed on 25.11.2010. The aforesaid order of the District Criminal Court Poonch has been assailed through the instant revision petition.
Barrister Hamayun Nawaz, the learned Counsel for the petitioner, vigorously argued that a false case has been registered against the accused-petitioner while Mst. Kulsoom Qayyum the alleged abductee is fiance and first cousin of the petitioner who herself alongwith her mother came to the house of the petitioner and solemnized marriage with the petitioner through her free will. The learned Counsel pointed out that an application allegedly filed by the abductee shows that an allegation of Zina has not been levelled against the petitioner therein but later on during statement recorded under Section 164, Cr.P.C. the allegation of Zina has also been added by the abductee.
The learned Counsel further contended that according to the prosecution story the abductee and her mother were severely beaten but in the light of the medical report they did not sustain even a scratch upon their persons. The learned Counsel stressed on the point that the medical examination report also does not support the prosecution version because in the light of the aforesaid report the edges of the hymen of the abductee have been found healed and vagina also found admitting three fingers which is not possible by intercourse of one or two days. Similarly, the medical examination report of Mst. Rahmat Jan is also false which cannot be relied upon. The learned Counsel further maintained that the statement of abductee recorded under Section 161, Cr.P.C. shows that it was recorded on 20.11.2006 while according to prosecution story the occurrence took place on 21.11.2006 therefore, above mentioned statement cannot be taken into consideration. The learned Counsel pressed into service the submission that the registration of Nikah cannot be cancelled by a District Mufti which is within the domain of a Family Court only therefore, Mst. Kulsoom being wife of the petitioner; the accused cannot be implicated in any offence. The learned Counsel vigorously argued that even the registration of the Nikah is not necessary for purpose of a valid marriage. The learned Counsel laid great stress upon the point that the petitioner cannot be declared as an absconder because he went to a foreign country to earn his livelihood however, the proceedings under Sections 87/88, Cr.P.C. were not taken against him therefore, he cannot be declared fugitive from law but the Court below failed to appreciate the prosecution evidence in its true perspective and has drawn wrong conclusions therefore, the impugned order may be set-aside and the petitioner may be released on bail. In support of his arguments, reliance was placed upon the following authorities:-
1. An unreported judgment of this Court titled Muhammad Zaheer Vrs. The State and another (Criminal Revision Petition No, 51/10) decided on 02.07.2010.
2. An unreported judgment of Supreme Court of AJK titled Nadar Khan Vrs. Muhammad Zaheer and another (Criminal Appeal No, 20/10) decided on 04.02.2011.
3. 2003 YLR 1441 (Lahore).
4. 2004 YLR 239 Lahore).
5. 2006 YLR 349 (Lahore).
On the contrary, Raja Sadaqat Hussain, the learned Counsel for the complainant, submitted that F.I.R was promptly lodged and the complainant expressed his suspicion against the petitioner and his family members that his sister and mother have been abducted by the petitioner and his family members. The learned Counsel pointed out that the abductee was recovered on 25.11.2006 and on the same day she was examined medically and according to medical report she was found raped. The learned Counsel further maintained that on 27.11.2006 the statement of the abductee was recorded under Section 164, Cr.P.C. wherein, she fully supported the prosecution version. The learned Counsel stressed upon the point that after commission of the offence the petitioner fled away and was arrested after four years. During his absence the proceedings under Sections 87/88, Cr.P.C. were taken against him and warrant of arrest was also issued by the trial Court. The learned Counsel pressed into service the submission that the petitioner is involved in heinous offences and the prosecution has collected sufficient evidence against him and his matter falls in prohibitory clause of Section 497, Cr.P.C. therefore, he is not entitled to be released on bail.
The learned Counsel for the complainant defended the impugned order on all counts.
Shaukat Abbasi, Assistant Advocate General appearing on behalf of the state fully supported the arguments raised by the learned Counsel for the complainant.
I have heard the learned Counsel for the parties and perused the record with care. It will be relevant to note that at bail stage deeper appreciation of the merits of the case is not permissible rather a tentative assessm ent of the record and the material collected by the investigation agency alongwith defence plea if any, has to be taken into consideration and if it transpires that reasonable grounds are available to connect the accused with the commission of offence then he is not entitled to be released on bail. In the present case, the statements of the prosecutrix recorded under Sections 161 and 164, Cr.P.C. fully support the story of the prosecution. She deposed that she was abducted alongwith her mother on pretext of participating in a meeting of an Ngo.
The statements of Mst. Rehmat Jan, mother of the abductee, and Shazia (P.W) are also on the record, which further support the version of the abductee.
The contention of the learned counsel for the accused-petitioner is devoid of any force that hymen of abductee was found healed or her vagina is spacious and admits three fingers, therefore, she is a woman of an easy virtue. The deep appreciation of medical report cannot be made at the stage of bail. Suffice to point out that according to medical examination certificate, rape was committed with the victim. The medical report of Mst. Rehmat Jan also shows that she sustained injuries ghair- jaifa and Hashmia by blunt weapon. On this account, the medical evidence prima-facie, fully corroborates the prosecution version.
I am cognizant of the fact that registration of Nikah is not necessary; however in the light of the version of defence the time and date of occurrence, the presence of abductee, Mst. Rehmat Jan (P.W) D and accused petitioner stand admitted therefore, the claim of the petitioner that the victim was his wife, cannot be made basis for grant of bail.
The alleged offence falls within the prohibitory clause of Section 497, Cr.P.C. and in such like cases refusal of bail is rule and not its grant. The F.I.R was promptly lodged and complainant expressed the suspicious about the involvement of the petitioner who after commission of the offence did not surrender even to police or the Court and absconded. He was arrested after four years of the occurrence therefore, his willful absconsion for a pretty long time makes it clear that he is a fugitive from law and Courts, therefore, not entitled to the concession of bail. It is by now settled position of law that a fugitive from law and Court loses some of normal rights granted by procedural and substantive law.
As far as Nadar Khan's case, decided by Apex Court is concerned, is quite distinguishable from the facts, of the present case because Zaheer Khan, accused had gone to Saudi Arabia after grant of bail and having no knowledge of filing of any revision petition against him before this Court, whereas the other authorities deal with the principle that registration of Nikah is not required by law for valid Nikah and it is just an irregularity.
As stated earlier, prima-facie, tangible evidence is available against the petitioner of his involvement in a heinous crime who also remained in absconsion for four years therefore, the exercise of discretion by the Court below does not smack of any perversity or arbitrariness. Thus, the impugned order has to be maintained.
The nutshell of the above discussion is that, finding no force in this revision petition, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.