This is an application under section 497(5), Cr.P.C. For cancellation of bail granted to respondent namely Aamar Khan by the learned Additional Sessions Judge, Lahore through an order, dated 13- 7-2000 in a case under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered against him through F.I.R. No.79 of 2000 at Police Station Ghalib Market, Lahore on the report lodged by Umar Hayat, brother of Mst. Rizwana, victim of the occurrence.
2. The facts, briefly in the background are that Aamar Khan respondent with the help of his co- accused, named in the F.I.R. Allegedly, on refusal of the parents of Mst. Rizwana to give her hand to him, enticed her away. The accused allegedly while carrying fire-arm forcibly took the girl with them in a car within the sight of Aftab Ahmad and Nawaz Khan. The police having found the abductee in the company of the accused took her into custody whereas the accused escaped from the reach of police and was subsequently arrested. During the course of investigation except the respondent the remaining accused were found innocent and one of them was also got discharged. Mst. Rizwana Ibrar was produced before a Magistrate who recorded her statement under section 164, Cr.P.C. In presence of the accused and was also cross-examined. Meanwhile the respondent filed a suit for restitution of conjugal rights against Mst. Rizwana Ibrar, whereas she filed a suit for jactitation of marriage which are pending adjudication before a Family Court at Lahore.
The case still in investigation when a learned Additional Sessions Judge, Lahore allowed the concession of bail to the respondent with the following observations:-- "As mentioned above the petitioner has filed a suit for restitution of conjugal rights against the abductee. Such a situation had arisen in ' Pathan and others v. The State' (1993 PCr. LJ 731) and Muhammad Tariq v. The State (1994 PCr.LJ 1879). In the precedent cases it was held that where Nikah solemnized between the accused and the abductee is sub judice the involvement of the petitioner in such cases requires further inquiry. Present case stands within the four of the aforesaid dictum laid down in the precedent cases inasmuch as validity of marriage between the petitioner and the abductee is sub judice in two different suits, one filed by the petitioner and the other by the abductee. This being so, involvement of the petitioner in this case requires further inquiry entitling him to the grant of bail. Hence, I accept this petition and thereby admit the petitioner to bail in the sum of Rs.1,00,000 with two sureties in the like amount to the satisfaction of this Court."
3. The learned counsel for the petitioner submitted that the abductee was taken into custody from the company of the accused after two days of her abduction and she in her statement under section 164, Cr.P.C. Categorically stated that she was abducted by the respondent on the gun- point and was compelled to put her signature on blank paper and then was subjected to Zina against her consent. She in cross-examination by the accused denied that she entered into a marriage contract with respondent willingly. Learned counsel submitted that plea of valid marriage being taken by the respondent would only be a defence plea of respondent to the commission of offence which cannot be given any weight at bail stage and learned Additional Sessions Judge has wrongly extended the concession of bail to the respondent on such ground. The petitioner while appearing in person has affirmed the correctness of the statement made by her before the Magistrate under section 164, Cr.PC and has stated that the respondent was putting pressure on her parents for compromise. She without taking any exception to her statement in question stated that a grave injustice has been done with her by enlarging the respondent on bail, who by committing Zina--bil-Jabr looted her virginity.
4. Learned counsel for the respondent, on the other hand placing reliance on Ghulam Ghaus v.
Muhammad Amin and others (1997 SCM R 37), Pathan and others v. The State (1993 PCr.LJ 1879) and Muhammad Tatriq v. The State. (1994 PCr.LJ 1879) submitted that pending adjudication of the suit for restitution of conjugal rights and jactitation of marriage before the Family Court at Lahore the case against the respondent would fall within the ambit of section 497(4), Cr.P.C. And respondent having earned a right of bail has rightly been extended the said concession. The learned counsel placing reliance on PLD 1981 SC 277 submitted that if ultimately it is held by the Family Court that there was a lawful marriage contract between the petitioner and the respondent there will be no repair to the loss caused to the respondent for his detention in jail, whereas on the other hand, if it is held otherwise, there can be no loss to the prosecution as the respondent can adequately be punished if he is ultimately found guilty of the charge. The learned counsel submitted that in the light of given fact it can safely be said that petitioner willingly entered into a marriage contract with the respondent and consequently pending disposal of the suit for jactitation of marriage filed by the petitioner and restitution of conjugal rights filed by the respondent even trial against the respondent should not proceed what to speak of cancellation of bail. The learned counsel finally argued that sine the trial has commenced and there being no complaint of misuse of the concession of bail, therefore, the cancellation of the same at this stage is not proper.
5. The learned counsel for the State submitted that the discretion was not properly exercised by the learned Additional Sessions Judge in the facts of the present case.
6. The pivotal question for determination would be whether on the basis of plea of Nikah raised on behalf of the respondent is a valid ground to bring his case within the purview of subsection (2) of section 497, Cr.P.C. For the purpose of grant of bail. The perusal of the judgment of the apex Court in Ghulam Ghaus case (supra) would show that the pendency of suit before the Family Court with a plea of Nikah would not ipso facto be a sufficient circumstance to claim concession of bail as of right, rather such right in each case on the basis of its own facts is to be judged in the light of preamble laid down by the apex Court. In the present case since the petitioner in her statement under section 164 Cr.P.C. Has denied the performance of Nikah with the respondent, therefore, the Nikahnama in question on the basis of which the plea of valid marriage has been taken being subject to scrutiny, would not undo the statement of victim and cannot be allowed to be used as shield to the commission of such a heinous offence. It may be observed that even if ultimately it is held by the Family Court that the Nikahanma was duly signed by the abductee still it would not be a conclusive proof of a valid marriage and, therefore, the statement of the abductee is not dislodged unless it is established at the trial that execution of Nikahnama was wilful which resulted into a valid contract of marriage. The mere plea of marriage would not be helpful to respondent to extend him the benefit of such plea at bail stage. The victim has repeatedly stated that she was subjected to the act of Zina without her consent and thus, the filing of cross suits would neither suggest the willingness nor affect the prosecution case as the criminal liability of the. Respondent in presence of direct evidence would not be adjudged on the basis of circumstantial evidence.
However, the suit for jactitation of marriage filed by the petitioner is complete answer to the claim of valid marriage raised in the suit for restitution of conjugal rights. The stand of the petitioner before the civil as well as criminal Court being not in conflict, the determination of the criminal liability of the respondent would not solely depend upon the result of the civil suit and thus, in such circumstances, the guiding principle for exercise of discretion would be whether refusal of bail will cause irreparable loss. There is no cavil to the proposition that pending decision on the question of validity of marriage Court has to exercise discretion on the plea of marriage. In the present case, the learned Additional Sessions Judge without taking into' consideration the statement of the abductee under section 164, Cr.P.C. And the stand taken by her in the suit for jactitation of marriage exercised discretion in favour of respondent only for the reason that he had filed a suit for restitution of conjugal rights. The exclusion of statement of victim and the plea taken by her in the suit for jactitation of marriage from consideration would indicate non-judcious exercise of discretion. The provision of subsection (2) of section 497, Cr.P.C. Is not to be stretched in favour of an accused unless it is found in the investigation/inquiry that he was not guilty of an offence with which he was being charged. The petitioner being the victim of occurrence is the star witness of the case who has levelled the allegation of Zina-bil-Jabr against the respondent in her statement made under section 161, Cr.P.C: as well as under section 164, Cr.P.C. Whereas the respondent while taking the plea of marriage has admitted the commission of an act of Zina and thus, only question left for determination would be whether it was an act of Zina-bil-Jabr or a lawful act of co-- habitation, while putting the plea of valid marriage in juxtaposition with the statement of the girl in the present case, the commission of an offence under section 10(3) read with section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was being made out apparently and in the light of the evidence in the hand of prosecution to be produced at the trial, there are reasonable grounds to believe that the respondent has committed the alleged crime of Zina-bil- Jabr. It may, be observed that plea of valid marriage may be a consideration for exercise of discretion for grant of bail for an offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as the element of consent may favour the offender I but in case of an offence under section 10(3) of ibid Ordinance no such plea of consent, implied or express, shall be available and relevant for grant of bail.
For the foregoing reasons, I while recalling the concession of bail granted to be respondent by the learned Additional Sessions Judge through order dated 3-7-2000 allow this application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.