2008 PLP 1330 (MLD)

MUHAMMAD AKRAM QURESHI, J.

Rehmat Ali son of Nazir Hussain, petitioner has sought post-arrest bail in case F.I.R. No.375 of 2007, dated 25-9-2007 registered under section 496-A, P.P.C. at Police Station Dhullekay District Gujranwala.

2. Precise allegations against the petitioner are that he along with the co-accused abducted Mst. Nazia alias Munni and also forcibly took away valuable articles.

3. After hearing the learned counsel for the parties and perusing the record, it has been noticed that the petitioner and three others allegedly abducted Mst. Nazia alias Munni. During investigation alleged abductee appeared before the police along with the petitioner and stated that she had contracted marriage with the petitioner of her free will and that she was not abducted by anyone and that no theft was committed at the residence of her parents. After examining Mst. Nazia Alias Munni, the Investigating Officer arrayed her as one of the accused in the case. During investigation, the petitioner was arrested in this case but the alleged stolen articles were not recovered from his custody. The police declared Ijaz and Tanvir co-accused of the petitioner innocent and challenged the petitioner, said Nazia alias Munni and Mst. Parveen to face trial.

4. Instant case was registered under section 496-A, P.P.C. which is as under:-- "Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." According to the contents of the F.I.R. Mst. Nazia alias Munni was already a married woman. Section 498, P.P.C. deals with enticing or taking away or detaining with criminal intent a married woman, which is as under: "Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". Section 496-A deals with enticing or taking away with criminal intent a woman whereas section 498, P.P.C. deals with enticing or taking away or detaining with criminal intent a married woman. Keeping in view the above circumstances and contents of the F.I.R., the present case should have been registered under section 498, P.P.C. Section 497 deals with adultery which is as under: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man such sexual intercourse not amounting to the offence or rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both, in such case the wife shall not be punishable as an abettor."' After the recovery of Mst. Nazia alias Munni Section 497 should have been added in the present case. Very registration of case under section 496-A and its continuation as such is illegal and contrary to the provisions of Pakistan Penal Code.

5. The offences under sections 497 and 498, P.P.C. are bailable and non-cognizable. The police was not competent to investigate this case without the permission of the Magistrate. I have perused the record time and again but did not find any such permission on record, thus very registration of the present case, its investigation and arrest of the petitioner is illegal. Hence the petitioner's illegal detention invites the discretion of this Court to enlarge him on bail.

6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.20,000 (Rupees twenty thousands only) with one surety in the like amount to the satisfaction of the learned Ilaqa/Deputy Magistrate. M.B.A./R-30/L Bail granted.