SARDAR EJAZ ISHAQ KHAN, J. The petitioner (Mst. Veera) seeks cancellation of bail of accused/respondents Nos.1 and 2, Jonathan and Munawar Masih, in case FIR No.496 dated 3I.O5.2022 under sections 493-A and 109, P.P.C., registered at Police Station Abpara, Islamabad. The respondents were granted bail by the learned Additional Sessions Judge vide order dated 13.06.2022. Later, sections 420, 468 and 471 were added by the police. The respondents were also granted bail in respect of these sections vide order dated 21.06.2022. The petitioner assails the bail granted vide both the bail orders and seeks cancellation thereof.
2. The FIR, filed by Mst. Veera Nasir, narrates that Veera and respondent No.1, Jonathan became friends about 3 years ago, that Jonathan was insistent on physical intimacy, that Veera didn't want to until they were married, that Jonathan eventually showed her a stamped marriage certificate telling her that all that remained was inserting the names of two witnesses, that Veera then asked her cousins to supply their ID cards, that Jonathan inserted their names on the nikahnama as ,witnesses and said that they can sign as witnesses later, that she insisted that the marriage had to be solemnised by a pastor too, to which Jonathan replied that his father (respondent No.2) was a pastor and that Jonathan knew how a Christian nikah takes place, that the two then had sexual intercourse, that Jonathan induced her to move to Dubai and got the visa and travel documents completed using the fake marriage certificate, they went to Dubai and returned a month or so later, that on their return Jonathan's parents disowned the marriage, that respondent No. 2 pastor also admitted that the nikahnama was not genuine, that Veera was now pregnant, that the two respondents and their family were extending threats to her life if she didn't abort the pregnancy (the foetus was naturally lost after the FIR). The FIR concludes with the accusations that Jonathan prepared a fake marriage certificate with the aid of his pastor father, and thereby established illicit sexual relations with her.
3. Learned counsel for the complainant asails the bail granting order dated 13.06.2022, claiming that the reasons in paras 7 and 8 were not tenable, namely, that the pastoral stamp was affixed on the photocopies of the nikahnama, that the marriage certificate was signed by the petitioner and the complainant as groom and bride, that the complainant remained with the petitioner of her own accord, and that the authenticity of the marriage certificate and its implication on the merits of the case could all only he thrashed out during recording of evidence, making the. case one of further inquiry. He submitted that the investigation has led to a blank counterfoil of the nikahnama in the marriage register being discovered, which shows that the counterpart was torn out of the nikah register, and that it was done with the knowledge of respondent N9.2, the pastor. He added that the investigation also reveals that respondent No. 2 did not sign or stamp the marriage certificate. He also urged that the offence of rape under section 375(iv), P.P.C. was also attracted. The thrust of his submissions remained focussed on the invalidity of the marriage, resting on the provisions of the Christian Marriages Act, 1872.
4. Learned counsel for the respondents answered all these submissions, which, intertwined with the reasons for this order, appear in the following paragraphs.
5. The offence under section 493-A, P.P.C. is of deceitfully causing a woman to believe that she was lawfully married to the accused, and for her to cohabit with him in that belief. The mens rea is deceit. Deceit entails dishonest trickery by one to make another believe that something is other than what it actually is. The drafters of the Cr.P.C. made 'deceit' the mens rea for the much severe punishment under section 493-A for a reason. They did not use its ordinary synonyms such as dishonesty. While 'dishonestly' and 'fraudulently' are defined terms in Chapter II of the P.P.C., the drafters did not define 'deceitfully'. Although the Explanation to section 415, P.P.C. reads that a 'dishonest concealment of facts is a deception'; the description of deception as dishonest concealment of facts is confined to section 415 by using the words 'within the meaning of this section'. A criminal court ought not slip into the easy trap of equating deceit with its ordinary synonyms. The rationale is obvious; dishonesty or fraudulent conduct deals with and is limited to the accused's conduct, but deceit takes into account the representee's conduct too. A representee cannot be said to be deceived where, regardless of the dishonest and fraudulent conduct of the representer, the representee has the knowledge of the truth or the circumstances show that he knowingly turned a blind eye to the truth. It must be borne in mind that we talk here of criminal liability, and not of the tort of deceit where imputed knowledge of the truth may not afford a defence. But for criminal liability, where the burden is beyond reasonable doubt, the prosecution has to show that the representee was neither aware nor harboured any suspicion that could with ordinary diligence lead him to discover the truth.
6. So while one may have acted fraudulently or dishonestly, he cannot be said to have deceived another where that other person either had the knowledge of the actual state of affairs or harboured a suspicion that would in the ordinary course lead that person to inquire further before letting oneself to believe in the representation made to him. Where the representee 'plays along', knowing that the representation is not genuine, the one playing along cannot, for, the purposes of criminal liability of the representor, be said to have been deceive.
7. Veera states in her FIR that she told Jonathan that the marriage had to be solemnized by a pastor. Why did she accept the alleged representation by Jonathan that he was a pastor's son and knew how the marriage took place? Veera and Jonathan had known each other for many years as choir singers and as members of the Youth Leadership Program in the Church. Veera had attended and witnessed several marriage ceremonies at the Church, and that's why she mentions in her FIR that pastoral prayer and blessing was necessary to solemnise the marriage. By the very contents of the FIR, it appears, prima facie, that she turned a blind eye to her own knowledge of the prerequisites of a valid marriage and, therefore, her stance in the FIR that she was deceived on the basis of the nikahnama alone is prima facie open to doubt and entails further inquiry. It is settled law that the benefit of doubt even at the bail stage has to go to the accused.
8. Learned counsel for the complainant presented his client's case with much homework and justified his brief with his effort. The pivot of his submissions remained the validity of the marriage under the Christian Marriages Act, 1872 (the "Act"). Under the Act, a Christian nikah is to be solemnized by a pastor. Learned counsel for the complainant referred to sections 4 and 5 of Act that read as follows:-
4. Marriages to be solemnized according to Act.---Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.
5. Persons by whom marriages may be solemnized.---Marriage may be solemnized in Pakistan: 1) by any person who has received Episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a minister...
9. The aforesaid sections stipulate that the marriage will be void if not solemnized by a person specified in the Act. But a marriage being void is altogether a different matter than whether Veera was deceived into believing that she was lawfully married to Jonathan. The question before me at this point in time for the purposes of bail in a charge under section 493-A, P.P.C. is not the legality of the marriage, but whether Jonathan deceived Veera into believing that the marriage was valid.
10. Learned counsel for the complainant has referred to other sections of the said Act to assert that the marriage was not valid, including that the notice under section 12 of the Act was not given, or that the petitioner's father's consent under section 19 of the Act was not obtained, but all these matters go to the question of validity of marriage only, and not to the question of deception. In any event, learned counsel for the respondents refers to section 77 of the Act which prevents the marriage being void due to any irregularity including the absence of any notice required under section 12.
11. In parallel to the bail proceedings, the Dispute Resolution Committee (DRC) at the relevant police station gathered the parties and also requested the local Bishop for the parties to attempt at a conciliation. It is reported that the Bishop stated that the marriage was not invalid per se, and all that remained was its solemnization by a clergy specified in section 5(1) of the Act. It is also reported that the Bishop read the requisite prayer at the session of the DRC and concluded saying that the marriage then stood solemnized. Thereafter, rukhsati was set to take place on 22.10.2022, but was prevented, not due to the invalidity of the marriage, but due to the apparent mistrust between the two families. All these questions of law and fact are to be looked at in detail at the trial, but they do indicate that, prima facie, under the Christian canonical law, the marriage was inchoate when the bride and groom signed the nikahnama, but was complete when the pastoral prayer was read out and the couple blessed by the clergy. Therefore, the partial validity of the marriage at the time Veera and Jonathan signed the nikahnama would be a question of law for the trial court to answer.
12. I am not on a tentative assessm ent prepared to accept that Veera, who witnessed dozens of marriages at the Church over many years, can without further inquiry assert conclusively that she was deceived merely on the basis of a nikahnama. Her acceptance of the nikahnama alone, without insisting on the pastoral prayer and solemnisation by a clergy, and without confirming with her friends or another clergy in private as to whether the nikanama alone sufficed for a valid Christian marriage, is prima facie not tenable; rather, it points to that she turned a 'blind eye' and decided to play along, which, in the circumstances,, does not stigmatise her, for she and the respondent were in love, and love can be blinding. But that does not entitle her to accuse that Jonathan deceived her.
13. Turning now to the learned counsel's contention that the charge of rape under section 375(iv), P.P.C. was also attracted, it suffices to note that Veep has nowhere alleged that she believed Jonathan to be another person to whom she believed herself to be married, for that is an essential ingredient of the said charge.
14. Regarding the prayer for cancellation of the pre-arrest bail granted to the respondents vide the order dated 21.06.2022 in respect of sections 420, 468 and 471, P.P.C. added later, learned counsel assails that order claiming that the recovery of the nikah register and the pastoral stamp from respondent No.2; Jonathan's father, was still pending. The 10 present in Court states that he has already recovered the relevant nikah register, and respondent No.2 present in Court undertakes that he would Hand over the stamp to the IO. Therefore, no further recoveries are required from respondent No.2. None of the aforesaid three sections fall within in the ambit of the prohibitory clause under section 497, Cr.P.C. None of the exceptions for the grant-of bail in such circumstances are shown to exist. Therefore, under the settled principle per Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) of grant of bail in non-bailable offences not 'falling within the ambit of the prohibitory clause of section 497, Cr.P.C., and with none of the exceptions to that rule being shown to exist, and with the distinction of the pre and post arrest bail under the circumstances of this case becoming irrelevant with the I0 stating that he has completed his investigation, I do not find any 'strong and exceptional' ground to interfere in the impugned order granting bail to the respondents.
15. The principles applicable for cancellation of bail are different from those for grant of bail. Law reports are replete reiterating the test of 'strong and exceptional' grounds being required for cancellation of bail. Bail is to be cancelled only if the bail granting order is patently perverse and is passed in violation of principles for grant of bail: see Samiullah and another v. Laiq Zada and another (2020 SCMR 1115). The possibility of an alternative view itself is not sufficient to recall a bail: see Munir Ahmad v. The State and another (2014 SCMR 1669) and Suba Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66).
16. For the reasons noted above, I find nothing perverse in the bail granting orders. This petition is therefore dismissed.