This is an application for bail before arrest on behalf of Muhammad Saleem Khawaja in case FIR No, 421/2017, dated 07.09.2017, under Sections 376, 338-A, 501, PPC, registered at Police Station, City Jalalpur, District Multan.
2. Precisely stated the case of the prosecution as unfolded from the crime report is to the effect that the instant case was registered on the complaint of Uzma Nawaz who alleged that Muhammad Saleem (petitioner) was in visiting term with her family and on the, basis thereof entice her with the promise of marriage and developed sexual relation; that during this relation, Muhammad Saleem (petitioner) prepared her nude pictures and videos; that on the basis of this material, Muhammad Saleem (petitioner) blackmailed and forced her for sexual intercourse on many occasions, due to which she became pregnant; that after coming to know her pregnancy, the petitioner administered her some tablets which resulted into miscarriage.
3. It is contended by the learned counsel that the petitioner is innocent and has falsely been implicated in the instant case with mala fide intention of the complainant; that the petitioner is Chairman Tehsil Municipal Corporation, Jalalpur, Kabirwala and the instant case is got registered at the behest of his political rivals; that Uzma Nawaz (complainant) is his lawful wedded wife, hence the offence under Section 376, PPC does not attract; that the petitioner has also filed a suit for restitution of conjugal rights which reasonably reflects that the bona fide of the petitioner and that the facts and circumstances brings the case of the petitioner within the ambit of Section 497(2), Cr.P.C. With these submissions, learned counsel for the petitioner requested for the grant of pre-arrest bail to the petitioner.
4. Learned Law Officer assisted by the learned counsel for the complainant has strongly controverted the arguments advanced by the learned counsel for the petitioner and contended that the petitioner is specifically nominated in the crime report and is alleged to have committed sexual intercourse with the victim by intimidating her through the threats of making public her nude pictures and videos; that the allegations incorporated in the crime report is being duly supported from the medical record; that even in police investigation, the petitioner is found involved in the commission of crime and that keeping in view the limited scope of pre-arrest bail, he is not entitled to the extraordinary concession of pre-arrest bail.
5. Arguments heard; record perused.
6. It evinces from the perusal of the record that the petitioner stands implicated in the instant case with the allegation of having committed sexual intercourse with Uzma Nawaz (complainant) and for having prepared her nude pictures and videos. It further unfolds from the perusal of the accusations that through the threats of uploading her nude pictures and videos on internet, the petitioner sexually ravished the complainant on multiple occasions, due to which she became pregnant. After acquiring knowledge about her pregnancy, the petitioner administered Uzma Nawaz some medicine which led to miscarriage.
7. In the above backdrop, it gleans from the perusal of the record that Uzma Nawaz (complainant/victim) was firstly admitted in Bahawal Victoria, Hospital, Bahawalpur on 28.05.2017 and again on 06.06.2017, due to pregnancy related complications and that too in precarious condition, During the course of investigation, the record from Victoria Hospital was also secured by the Investigating Officer in support of averments of Uzma Nawaz incorporated in the ' crime report.
8. The petitioner has mainly urged the grant of extraordinary concession of pre-arrest bail on the premises that Uzma Nawaz (victim) is his legally wedded wife, hence the mischief of Section 376, PPC does not attract. In this regard, it is noticed that in support of acclaimed Nikah, the petitioner has placed on record a Nikah Nama dated 19.06.2017. However, it is important to mention here that Uzma Nawaz has already filed a suit for jactitation of marriage with the stance that the Nikah in question was solemnized contrary to her wishes in the office of SDPO concerned. Not only this, learned counsel for the complainant has also placed on record the pictures of Nikah from which it evinces that it was solemnized in the office of DSP. Even otherwise, the complainant was sexually ravished much before the stated Nikah. It needs no elaboration that the act of rape cannot be provided a legal cover through a subsequent fo'rced Nikah. At bail stage, Court cannot dive deep into the merits of the case and instead have to evaluate the material collected through the Yardstick of tentative assessm ent. In the instant case, the tentative assessment of the accusations incorporated in the crime report, statements of the witnesses recorded under Section 161, Cr.P.C., the medical evidence and investigation conducted so far reasonably connect the petitioner with the commission of crime.
9. This Court is not oblivious of the fact that the petitioner is seeking extraordinary concession of pre-arrest bail. The foremost consideration for grant of such relief is the element of mala fide and the expected recovery of some incriminating articles. So far as, the implication of the petitioner on account of some ulterior motives or mala fide is concerned, this Court has not been able to come across any such material. In the case reported as "Malik Zafar Abbas Vs. Agha Raza Abbas Qazilbash, etc" (2003 Crl.L.J 20) the Hon'ble Supreme Court of Pakistan observed as under: "Accused' would not be entitled to pre-arrest bail when there is no element of unjustified harassm ent, false implication or ulterior motive either on part of prosecution of adversaries concerned or mala fides of intended arrest."
10. As regard, the expected recovery, it is noticed that the nude pictures and videos of the complainant are yet to be recovered from the petitioner. The grant of pre-arrest bail to the petitioner is likely to damage the case of the prosecution for non-recovery of above mentioned important incriminating material. The Hon'ble Supreme Court of Pakistan in somewhat similar circumstance cancelled the pre-arrest bail granted to an accused its case reported as "Samar Sultan vs. The State and there" (PLD 1994 S.0 133) with the following observations: "Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want for recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime."
11.For what has been discussed above, the instant petition merits no acceptance, 'hence is dismissed.