RAJA SAEED AKRAM KHAN, J. -- This appeal has been directed against the judgment passed by the Shariat Appellate Bench of the High Court, dated 26.10.2018, whereby revision petition filed by the appellant, herein, has been dismissed.
2. Through the following short order dated 1 1.12.2018, the instant appeal has been disposed of:-- "Arguments heard. The detailed reasons shall follow . While accepting this appeal and recalling the impugned judgment the appellant is enlarged on bail subject to furnishing of personal and surety bond of rupees one million to the satisfaction of Registrar of this Court or any Judicial Magistrate first class, Muzaf farabad. He shall be immediately released in the case registered under F.I.R. No, 98/18 in the offences under Sections 10, 11 and 19, ZHA, if not required in any other case.
The Advocate-General is also directed to point out the flaw in the investigation and refer the matter to the Inspector General of Police for taking action against the negligence of the Investigating Officer. The Inspector General of Police is directed to submit report to the Registrar of this Court regarding the action taken, within one month time."
3. The detailed reasons for the above-reproduced short order are as under:--- On a report submitted by the complainant, respondent herein, an F.I.R. was lodged against the accused-appellant, herein, and one Zahida Bibi, in a case under Sections 10, 11 and 19 of the Offence of Zina (Enforcement of Hudood) Act, 1985, at Police Station Garhi Dupatta, Tehsil and District Muzaf farabad. It was averred in the FIR. that on 17th July, 2018, at about 11:00 p.m., the accused-appellant, Muhammad Javaid, abducted the daughter of the complainant, namely Zahida Bibi, for committing Zina. After necessary investigation, the accused-appellant was arrested by the Police. He moved a post-arrest bail application before the Additional Tehsil Criminal Court No, H, Muzaf farabad, on 27.9.2018, which was rejected vide order dated 1.10.2018. On 2.10.2018, the accused-appellant also approached the Additional District Criminal Court, Muzaf farabad, for release on bail, which was also refused, vide order dated 5.10.2018. A revision petition against the order dated 5.10.2018, filed before the Shariat Appellate Bench of the High Court (to be referred as the High Court hereinafter), has also been dismissed through the impugned judgment, hence this appeal.
4. Ch. Muhammad Manzoor , Advocate, counsel for the appellant, submitted that the learned High Court failed to exercise the discretion in a legal manner while refusing the bail to the appellant. He submitted that the appellant solemnized marriage with Zahida Bibi, with her own freewill on 18.7.2018 and the marriage ceremony was held at Rawalpindi, in the presence of respectable witnesses. He added that the learned High Court failed to consider this important aspect of the case that the F.I.R. was lodged with mala fide intention as father of Zahida was unhappy with this marriage. He added that the Courts below also did not take into consideration that Zahida is a sui juris and she can enter into the wedlock with her own sweet-will. He further added that Zahida is legally wedded wife of the appellant, who has filed a suit for jactitation of marriage with the appellant, herein, on the pressure of her family members. In continuation of the arguments, the learned counsel submitted that the appellant is behind the bars for more than 2 months.. Although challan has been presented in the Trial Court and the appellant is no more required for further investigation but both the Courts below have not appreciated the material in a legal manner .
5. On the other hand, Ch. Shaukat Aziz, advocate, counsel for the complainant, while supporting the impugned judgments of the Courts below , submitted that the learned High Court as well as the. Courts below has rightly appreciated the statutory provisions of law while refusing the bail to the appellant, as his case is fully covered by the provisions of Section 361, APC, which is fully supported from the record that her age is below 16 years. He added that the minor daughter of the complainant, who is a poor person, having no approach, has been abducted and subjected to Zina, in spite of the fact that he approached the high-ups of the Police but he failed to get justice.
He added that the abductee, who has appeared before the Court in the earlier round of litigation, has categorically , stated that she has no lawful relation with the accused-appellant, rather she was forcefully abducted and Zina was committed with her. She also denied the factum of Nikah , alleged by the appellant. The learned counsel forcefully argued that the appellant has committed a heinous offence and both the Courts below have rightly refused to extend discretionary relief to him.
6. Sardar Karam Dad. Khan, the learned Advocate-General, adopted the arguments of the counsel for the complainant and supported the impugned judgment, while submitting that the accused-appellant is not entitled to the concession of bail, who has committed the of fence of Zina.
7. We have heard the learned counsel for the parties and perused the record alongwith the impugned judgment.
8. From the record it appears that an F.I.R. was registered against the accused at the Police Station Garhi Dupatta, in the offences under Sections 10, 11 and 19, ZHA, of the report lodged by the complainant, respondent herein, the real father of the alleged abductee, stating therein that the accused forcefully abducted her for committing the act of Zina. Although the medical report shows that the alleged abductee was subjected to the sexual intercourse but in the challan presented in the Court of competent jurisdiction, she has been shown to be released on bail. Moreover , in the medical report no mark of violence has been shown on the body of the alleged abductee. At this juncture, we cannot go deep into the findings recorded in medical report, however , prime facie , it appears that the alleged abductee is a consenting party in the act of sexual intercourse and she has already been released on bail, therefore, the case is of further inquiry and the authenticity of the medical report or forceful abduction can only be seen by the Trial Court after recording the evidence. A tentative perusal of the statement of Zahida Bibi, recorded under Section 161, Cr.P.C., and the fact that she has also been challaned as accused, makes the case one of further inquiry , therefore, under the settled law, where a case of further inquiry is made out, the accused is entitled to the concession of bail. In the case reported as Muhammad Parwaiz v. The State & another [1997' MLD 2276], it was observed as under:-- Proceedings on the premises that Mst. Nagina Bibi wilfully indulged in sexual intercourse without believing that she was wedded to the petitioner , her conduct would be as blameworthy as that of the petitioner . Thus, the question whether the petitioner has deceitfully obtained the consent of Mst. Nagina Bibi to indulge in sexual intercourse with him would be one of the further inquiry . For the forgoing reasons, the application for bail is allowed and the1/2 petitioner is admitted to bail in the sum of Rs, 50,000/- with two sureties in the like amount each to the satisfaction of the Illaqa/Duty Magistrate."
In the case reported as Mumtaz Hussain v . The State [ 2000 YLR 603 ], it has been observed as under:--- ".... The claim of the petitioner is that Mst. Zuhran Bibi is his legally wedded wife. The same stand was also taken by Mst. Zuhran Bibi before the lower Court. The question with regard to the genuin eness of the Nikah between the spouses could only be determined by the Trial Court after appropriate assessment of the prosecution evidence.
Prime facie, case of the petitioner requires further enquiry and he is entitled to the concession of bail. Accordingly , the petitioner is admitted to bail subject to furnishing bail bonds to the tune of Rs, 50,000/- (rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned Trial Court."
Similarly , in the case reported as Squad Ahmed alias Kaura v. The State [2003 MLD 1514 ], it was observed, as under:--- "8. Allegedly both the petitioners alongwit h their co-accused had abducted Mt. Rukhsana Parveen, the daughter of the complainant for Zina.
9. Sajjad Ahmed alias Kaura had taken plea of valid marriage between him and her. It is admitted position on the record that she has brought suit for jactita tion of marriage against him while he has brought suit for conjugal rights against her . These suits are pending adjudication before the competent Family Court.
10. In view of the plea of valid marriage by. Sajjad Ahmed Kaura and the pendency of the two suits and the fact that petitioner Muhammad Saleem has been found innocent in the investigation and his name having been placed in Column No, 2 of the challan report, the case against them has become one of further inquiry and the same is covered under sub-section (2) of Section 497, Cr .P.C.
11. They are stated to be behind the bars and previous non-convicts.
12. In these circumstances, they (petitioners) are entitled to bail. The petitions, therefore, are accepted and they are admitted to bail provided they furnish bail bonds in the sum of Rs, 1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned Trial Court."
Similar proposition has been dealt with by a learned Single Judge of the Karachi High Court, in the case reported as Ali Sher & 2 others v. The State [1988 P.Cr.L.J. 1428], while holding that no mark of violence was found on the body of the abductee and she was found used to sexual intercourse, therefore, the case against the accused being one of further enquiry as to his guilt, he was admitted to bail.
9. In the case in hand, the accused is claiming that Zahida Bibi is his legally wedded wife, however , the authenticity of Nikah nama is yet to be determined as a suit for jactitation of marriage filed by Zahida Bibi is pending adjudication. Although challan has been presented in the Trial Court but there is no positive progress in the trial.
After tentative assessment of the material brought on the record, we are of the view that the case needs further probe. In such circumstances, bail cannot be withheld as punishment, as the appellant is behind the bars for more than 2 1/2 months. We are fortified in our view from the findings recorded by this Court in the case reported as Muhammad Arif v . Babar & another [2014 SCR 916], wherein, it has been observed, as under:-- .....It is settled principle of law that bail cannot be withheld as punishment if otherwise the accused is entitled for the same. Normally , this Court always reluctant to interfere with the discretion exercised by the trial Court unless it is found that the bail granting order is patently illegal; erroneous, factually incorrect and has resulted into miscarriage of justice. Nobody should remain in jail for indefinite period. Even otherwise, the bail is not acquittal; it is only a change of custody ."
Thus, we are convinced that the accused-appellant is entitled to be admitted to bail under the aforesaid facts and circumstances, as the case in hand appears to be one of further inquiry into the offence of the accused-appellant.
Resultantly , the appeal is accepted and while recalling the impugned judgment, the appellant is enlarged on bail subject to furnishing of personal and surety bond of Rs, 10,00,000/- (one million rupees), to the satisfaction of Registrar of this Court or any judicial Magistrate first class, Muzaf farabad. He shall be immediately released in the case registered under F.I.R. No, 98/18 in the offences under Sections 10, 11 and 19, ZHA, if not required in any other case.
10. Before parting, however , we deem it necessary to convey our displeasure on defective investigation conducted by the concerned Investigation Officer, who has tried to smash the case of the prosecution while giving benefit to the accused-appellant while the conduct of such delinquent officer cannot be overlooked, which requires to be enquired into. A copy of this judgment shall be transmitted to the Inspector General of Police, Azad Government of the State of Jammu and Kashmir , for looking into the matter and issue direction for holding an inquiry against the concerned Investigation Officer through some honest officer, not below the rank of Superintendent of Police and submit the report of the outcome of the inquiry proceedings through Registrar of this Court, within a period of one month.
These are the detailed reasons for the short order dated 1 1.12.2018.