1996 P Cr (PLP)

Ch. Mahmood Akhtar Khan for the Complainant. Maqbool Hussain petitioner was arrested on 14-11-1994, in pursuance of a case registered against him vide F.I.R. No.99, dated 19-10-1994, alleging the commission of offences under sections 10(3), 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Dhuman, District Chakwal, regarding an occurrence which allegedly took place on 9-10-1994, at about 9 a.m. in the area of village Langah which is about 12 miles from Police Station Dhuman of District Chakwal.

2. The matter. was reported by Khuda Bakhsh complainant, father of Mst. Rehana Yasmin, aged about 20 years. According to Khuda Bakhsh complainant he found his daughter Mst. Rehana Yasmin missing from the house about 10 days ago i.e. on 9-10-1994, and he learnt from some co-villagers that his daughter Mst. Rehana Yasmin had been abducted by Maqbool Hussain petitioner. Complainant Khuda Bakhsh said that he had been making efforts to get his daughter back but having failed to do so he had come to police to lodge a case against Maqbool Hussain petitioner.

3. Learned counsel for the petitioner submits that the so-called abductee is actually the legally-wedded wife of the petitioner and places reliance upon the Nikahnama, dated 10-9-1994 (Annexure "F") i.e. one month prior in point of time to the so-called abduction and one month ten days prior in point of time to the registration of the case. Learned counsel further submits that Mst. Rehana Yasmin swore an affidavit on .13-10-1994, (Annexure "C") to the effect that she had entered into marriage with Maqbool Hussain petitioner of her own free choice and volition. Learned counsel for the petitioner further submits that since the prosecution was asserting that Mst. Rehana Yasmin was already a married woman and that there was a Nikahnama, dated 25-2-1994 (Annexure "E"), therefore, the petitioner had brought a suit for declaration on 27-3-1995, praying inter alia that a declaration be made to the effect that Mst. Rehana Yasmin (defendant) is the legally-wedded wife of the petitioner that the Nikahnama, dated 10-9-1994, "is correct, is legal, is by the free consent of the party and is in accordance with the prescribed law Finally, it is submitted by the learned counsel for the petitioner that since the question of the validity of the two conflicting and contrary Nikahnamas is now sub-judice in a competent civil Court at Chakwal, therefore, the case against the petitioner is a matter of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. which would entitle the petitioner to be released on bail. In support of his contentions, learned counsel places reliance upon the following cases:-- (1) Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 at 103. (2) Shakir Muhammad v. State PLD 1985 SC 357.

4. Learned counsel for the State informs me that the challan has been submitted in Court since 11-6-1995, and that the case is now ripe for trial. Learned counsel for the State submits that Mst. Rehana Yasmin made a statement on 14-11-1994, voluntarily and it was reduced into writing under section 164, Cr.P.C. by a learned Magistrate at Chakwal (Annexure "D"); and that the Nikahnama relied upon by the petitioner, is a forged document.

5. Learned counsel appearing for Khuda Bakhsh complainant submits that the delay in lodging the F.I.R. is not fatal because in our society where the honour of a family, is involved all efforts are made to resolve the problem amicably and such matters are reported to the police only when all such efforts through private negotiations fail to bear fruit. In this context learned counsel for the complainant places reliance upon the case of Zabar v. State 1995 PCr.LJ 557.

6. Learned counsel for the complainant further submits that while the parties to the Nikahnama being relied upon by the petitioner are admittedly residents of Chakwal yet significantly the Nikahnama was not registered at Chakwal but at Rawalpindi which renders it rather doubtful. Learned counsel places reliance upon the following cases:-- (1) Allah Ditta v. State 1990 PCr.LJ 1567. (2) Muhammad Aslam v. State 1991 PCr.LJ Note 342 at p. 232.

7. The question as to which out of the two Nikahnamas is valid can only be determined in a competent Court after recording of evidence. For the limited purpose of the grant or refusal of bail after arrest, this Court is concerned with a few basic criteria. First, whether reasonable grounds to believe that an accused person is guilty of an offence punishable with death, imprisonment for life or imprisonment for 10 years seem to exist or not? Secondly, if reasonable grounds which is an expression of higher import than mere allegation do not seem to exist, then is there sufficient material for making a further inquiry? Thirdly, are there any chances of a repetition of the offence allegedly committed by an accused in case he is released on bail? Fourthly, are there any chances of the accused jumping his bail by absconding? Fifthly, whether it will prejudice the case of the prosecution if an accused is granted bail and finally will it serve any useful purpose by confining a person in custody when he is no longer required for purposes of investigation?

8. On the basis of the above criteria, certain basic principles regarding the grant or refusal of bail have been clearly settled by the superior Courts. The first and the basic principle is that bail cannot be withheld as a punishment. The second principle is that every person is presumed to be innocent unless found guilty by a competent Court. The third principle is that every person is entitled to a fair trial which includes a trial without inordinate delay. The fourth principle is based upon the basic principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubts while the onus on an accused person is merely to show that what he is saying may reasonably be true. This basic principle of criminal jurisprudence is to be applied at all stages including the pre-trial stage for determining the question of the grant or refusal of bail.

9. In the instant case, admittedly there is a delay in lodging the F.I.R. There is a Nikahnama prior in point of time to registration of the case. It is also significant that Mst. Rehana Yasmin who is admittedly sui juris in her statement which was recorded under section 164, Cr.P.C. which was without duress or coercion according to both the learned counsel for the State and the complainant, she does not mention her earlier marriage. I am refraining from making any observation about this omission lest it prejudice the case of the prosecution. It will be for the trial Court to come to its own independent conclusion after recording evidence.

10. For the time being, reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seem to exist. However, the case against the petitioner may be a matter of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C.

11. Resultantly, the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Chakwal. N.H.Q./M-2561/L Bail allowed.