' ABDUL SAMI KHAN, J.---Through this petition under section 498, Cr.P.C. Saifullah alias Gappoo petitioner has sought bail before arrest in case F.I.R. No, 63/12, dated 2-3-2012 registered at Police Station Kirrana, District Sargodha in respect of offences under sections 496-A/ 365-B, 458/ 376/ 420/ 468/ 471/ 494/ 495, P.P.C.
2. The learned counsel for the petitioner contends that the petitioner has been involved in this case by the complainant with mala fide intention and ulterior motives after joining hands with the local police. Further submits that the complainant has spread the net wide to entangle maximum persons from the petitioner side so that nobody would remain behind to pursue the case. Further submits that as a matter of fact the alleged abductee namely Mst. Shagufta Bibi has contracted marriage with the petitioner which fact is established from a Nikah Nama duly registered with NADRA in presence of the alleged abductee which is a prerequisite for registration of Nikah with NADRA.. Further contends that the alleged abductee not only sworn affidavit in this regard but she also got recorded statement under section 164, Cr.P.C. Before the learned Judicial Magistrate wherein she has categorically- stated that nobody -had abducted her and she has contracted marriage with the petitioner of her own free will. Further contends that the alleged abductee has also moved an application when she was at Dar-ul-Aman to the effect that she should be examined medically because she was pregnant at that time and in the same application she also stated that her mother should be kept away from him who was also lodged in Dar-ul-Aman by the complainant with some ulterior motives. The petitioner has already joined the investigation and in spite of the fact that fire-arms and car have been mentioned in the F.I.R. But nothing has been recovered from his possession during the investigation of this case which fact falsify the story carved in the F.I.R. By the complainant..
3. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant after going through the record contends that the petitioner is nominated in the promptly lodged F.I.R. With specific role of abducting Mst. Shagufta Bibi. Further submits that there is absolutely no mala fide on the part of the complainant to falsely implicate the petitioner in this case which is. An important ingredient of pre-arrest bail. The abductee has got recorded her .
Statement under section 161, Cr.P.C. Wherein she has levelled allegation of Zina on the petitioner and substantiated the story narrated in the F.I.R. Moreover she has also got recorded her statement under section 164, Cr.P.C. To the learned Judicial Magistrate wherein she did not acknowledge her marriage with the petitioner rather she reiterated the story of the F.I.R. The alleged abductee has also filed a suit for jactitation of marriage which is pending before the Family Court. _ Recovery of weapon of offence and that of car is Yet to be effected from the petitioner.. Further submits that nobody put the honour of his kith and kin at stake in such like cases just to falsely involve the accused in criminal case. The abductee was married with one Ziafat Hussain prior to ' registration of case and her Nikah with the present petitioner has been manoeuvred. The prosecution witnesses have so far stood by their statements under section 161, Cr.P.C. And have corroborated the story of the F.I.R. In their statements. The offences with which the petitioner is charged are heinous in nature, thus, he is not entitled to the concession of pre-arrest bail.
4. Arguments heard. Record perused.
5. This is bail before arrest and only tentative assessment of the material is required at this stage.
After perusing the record it has been noticed by this Court that the complainant has spread the net wide and entangled the whole family of the petitioner in this case. A registered Nikah Nama of the alleged abductee is on record establishing her marriage with the petitioner which prima facie negates the story of the prosecution set forth in the F.I.R. The learned Deputy Prosecutor-General after consulting the record from cover to cover has confirmed that the Nikah of alleged abductee with Ziafat Hussain is not in police file. Admittedly suit for jactitation of marriage is pending in the Family Court. Law is quite settled on the point that the matter involving Nikah between the parties should be resolved by the Family Court by adopting the proper procedure and not by the police.
Reliance is placed on the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95). The alleged abductee had taken different stances at different forums during the investigation of this case either in support of the petitioner or against him which itself creates serious doubt in the prosecution story and benefit of doubt obviously goes in favour of the petitioner. Due to such divergent stances the case against the petitioner of course falls within the ambit of further inquiry into his guilt covered by subsection (2) of section 497, Cr.P.C.
6. For what has been discussed above this petition is accepted and the ad interim pre-arrest bail already allowed' to the petitioner vide order dated 18-7-2012 is hereby confirmed subject to furnishing of fresh bail bond by the petitioner in the sum of Rs,1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/Area Magistrate.