Dr. Khurshid lqbal, J.- I. By means of the Bail Application, Rashid Ali (petitioner), seeks his post-arrest bail, mainly on the accusations of abduction (section 365-B, PPC) and rape (section 376, PPC) of a girl by the name Ms. Tasleem Bibi (victim). On these accusations, coupled with several others under section 147/149/354/384, 457 and 506, PPC, against him and several other persons a criminal case at the strength of FIR #260 has been registered on 10/06/2023 in the Karora Police Station of District Shangla. It is worth noting that sections 376/365B PPC read with 53 CPA are not mentioned in the bail petition. Its addition was sought through Cr.Misc.No.333-M/2023. The sections of law being added to the case later on, the addition sought is accorded.
2. The germane facts of the prosecution case are that victim, a minor girl, is stated to have been given to the petitioner on nikah whose rukhsatee is still awaited. Ms. Bakht Bibi (complainant), her mother, put a demand to the in laws of the victim to arrange a separate accommodation before the victim's formal marriage ceremony (rukhsatee) with the petitioner. As the complainant states the parents of the petitioner were not willing to concede to her demand. On 10/06/2023, at about 11.00 pm, the complainant, accompanied by one Ms. Samina, her other daughter, reported to the police that her husband has passed away some 10/11 years ago; that about 02 years ago, she has arranged the nikah of the victim with rukhsatee awaited. She further stated that on the eventful night, she, her children and one Sahibzada (whom she calls as her brother) was present when Ahmad Jan, her father-in-law and many others persons, including the petitioner (all six in number), suddenly entered her house at around 00.10 hours; amongst them, her father-in-law took hold of her and two others launched a criminal assault on her with kicks and firsts which caused her bodily pains. The petitioner, alongwith the remaining tied her daughter Ms. Samina and her son Rahmat Ali and abducted the victim.
3. As the report of the complainant was initially recorded in the Daily Diary at serial 411 in the Police Station, the incident was inquired into. On 10/06/2023, the fourth day of the incident, the local police recovered the victim from the residential house of the petitioner. The victim was produced before a Judicial Magistrate. She recorded a detailed statement under section 164, Cr.PC. She was also medically examined. In light of her statement, allegations of abduction and rape were added in the case.
4. Arguments of Mr. Fayaz Ahmad, learned counsel for petitioner and Khawja Salahuddin, learned A.A.G., assisted by Mr. Mian Safeer Advocate, learned private counsel for the complainant-party were heard at length and judicial record perused with their assistance.
5. The fate of the instant application depends albeit tentatively on the statement of the victim and her medical examination. In her statement, she categorically charged the petitioner for her abduction with the facilitation of his brother, including Sahibzada (whom her mother considers as her brother), came to her house and ensued a quarrel with her mother. She admitted that during her childhood, she was given in nikah to the petitioner but she didn't want to go with them. She stated that those persons wanted to take her away forcibly while she was not willing to go with them. She further stated that her family members, too, didn't want her to go with them. On her and her family members' resistance, they criminally assaulted her mother and abducted her by dragging towards a jeep in which she was taken to an unknown house where the petitioner committed sexual intercourse with her thrice without her consent. Thereafter, she added, the petitioner kept her wandering in the jungles and kept her subjected to his sexual lust. Finally, she continued, she was taken to the house of Umar Gul, his brother, from where she was recovered by the police. The victim was medically examined the same day. On her medical examination, it was found that she was subjected to sexual intercourse with her virginity having been lost. She was, however, found to have developed secondary sexual characteristics. Some small bruises were found on her body. The Investigating Officer has obtained and placed on the record a copy of her Form-B of her family. The Form reflects that she has been born on 06/02/2006. As of 10/06/2023, she is of 16 years and 03 months age.
6. Three points are gleaned from the above. Firstly, she was abducted. Secondly, she was subjected to sexual intercourse for several days without her consent. And, thirdly, she is a minor girl. These three aspects are significant and could be seen for the purpose of bail. Learned counsel for the petitioner argued with great vehemence that the petitioner is husband of the victim and there is no legal hurdle in what he said to take his wife with himself and further that to engage her in sexual activity. The learned counsel, during his lengthy arguments, didn't deny from the allegations of abduction and sexual intercourse without her consent. For the sake of arguments, even otherwise than the allegation of abduction for the purpose of compulsion in marriage (section365-B, PPC), the offence of abduction with intent to secretly and wrongly confine the victim (section 365, PPC) would stand attracted. The matter would not end here simply to say that the punishment under section 365, PPC, is not covered by the prohibitory clause of section 497, Cr.PC. The reason is that two other aspects, viz. rape and juvenility need to be examined. A close and critical reading of section 375, PPC, defining of the offence of rape makes no exception of marriage. The first and second descriptions--rape against will and consent of a victim--of the offence enunciated in the definition, apply here. If the allegation of rape in marriage is ignored, yet another question is the victim's juvenility. The victim, being just above 16 years of age, is still covered in the definition of 'child', being under 18 years of age. In a recent case Mumtaz Bibi v. Qasim, PLD 2022 Islamabad 228--a similar question to the extent of abduction of a 15 years old girl under section 365-B, PPC, vis--vis her recovery from illegal custody (section 491, Cr.PC) was considered by Islamabad High Court. The accused party in this case contended that marriage of the girl had taken place. The Court, after detailed discussion, has drawn as many as 07 conclusions, out of which the last 04, being relevant to the facts of the present case, are reproduced as under: D. A child under the age of 18 years is a dependent of an adult whether such adult is a parent or guardian or other caregiver appointed by the State. The State is under an obligation to uphold and guarantee the rights of such child, who cannot be deemed to have the competence or capacity to parent a child of his/her own and act as guardian endowed with the primary responsibility to provide for his/her child while being a child himself/herself.
E. Sections 375 and 377A of P.P.C. read together with Article 9 of the Constitution, Islamabad Capital Territory Child Protection Act, 2018, and provisions of United Nations Convention on the Rights of the Child unequivocally provide that no one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of section 377A.
F. Neither a child under the age of 18 can consent to engage in sexual conduct in any form, nor can a parent or guardian of a child, contract a child out to engage in sexual conduct. A child is not a chattel that can be contracted out by a trustee or guardian to engage in conduct that the child himself/herself cannot grant consent for. No consent can be granted on behalf of a child by a parent or guardian involving discharge of personal service by the child or engagement in conduct that is unlawful and prohibited, such as that required to be performed under a marriage contract.
While a parent or guardian can deal with a child's property in his/her best interest, the parent or guardian is not at liberty to contract out the child to engage in a contract of personal service or conduct otherwise prohibited by law.
G. Sections 375 and 377A of P.P.C. do not provide for any exceptions or exclusions to conduct that otherwise qualifies as rape or sexual abuse as defined therein, and the said sections would be attracted even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/her parent or guardian on his/her behest.
7. Another significant aspect of the matter is that the refusal of the victim to go with the petitioner and/or to furnish her consent for the sexual activity could be seen as exercise of option of her puberty. The petitioner appears to have denied her to exercise the option and forced her against her will and consent to sexual activity. There is a universal principle of law that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime" [Rigg v. Palmer, 115 N.Y. 506 (1889)].
8. Consequent upon the above discussion, the petitioner reasonably appears to be connected with the commission of the above referred offences. Needless to say, section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 has been applied which provides that the offence of sexual abuse as defined in section 2(1)(y) of the Act is punishable with imprisonment for a term which may extend to fourteen years and shall not be less than seven years with fine not less than ten hundred thousand rupees. Resultantly, the bail application in hand is dismissed.