2013 PLP 2220 (YLR)

SHAHID HAMEED DAR, J.

The petitioner seeks bail after arrest in case F.I.R. No.1453, dated 19-9-2012, under sections 496-A, 376, P.P.C. registered at Police Station Shahdra, Lahore.

2. Precisely the prosecution case as narrated by Shamshad Ahmad (complainant) is that her daughter Mst. Amina Shamshad aged 17 and a student of F.Sc left his house at about 8-00 a.m. on 15-9-2012 for Alnoor Academy Lajpat Road, Shahdra and took away with her gold ornaments weighing 13 tolas, prize bond worth Rs.1,05,000, net cash Rs.1 lac, cell phones, the utility bills and certain security documents; she did not return from the academy; his wife went there and learnt that Mst. Amina Shamshad did not attend her classes on that day; a case might be registered against the unknown accused.

3. The alleged abductee/prosecutrix joined investigation on 19-9-2012 and endorsed the story of F.I.R.; she was also examined under section 164, Cr.P.C. whereby she reiterated her previous stance, she took before the police. She also filed a suit for jactitation of marriage which was decreed in her favour vide judgment dated 14-12-2012 by the Judge Family Court, Lahore.

4. Learned counsel for the petitioner submits that the petitioner has been falsely involved in this case as he did not abduct Mst. Amina Shamshad, who being sui juris contracted marriage with him on 14-9-2012; the alleged abductee filed a private complaint under sections 452, 506, 34, P.P.C. against her father and others wherein she appeared before learned Judicial Magistrate, Lahore on 17-9-2012 and deposed that she was aged 18 and being sui juris she contracted marriage with Zeeshan (petitioner) of her free-will and accord and that she lived with him as his wife; the alleged victim however took a somersault after joining the complainant and deposed against the petitioner being under the thumb of her father; the petitioner has filed an appeal against the ex parte judgment and decree of the learned Family Judge which is still pending adjudication.

5. On the other hand, learned counsel for the complainant submits that it is a case of elopement/enticement as Mst. Amina Shamshad was misled by the petitioner to leave her house with valuables whereafter she was subjected to zina-bil-jabr by the accused-petitioner who, fabricated forged documents including nikahnama, at gunpoint; the suit for jactitation of marriage filed by the abductee was decreed in her favour on 14-12-2012; the petitioner has ruined the life of an innocent girl, therefore, he may not be granted the relief prayed for.

6. Learned Additional Prosecutor General Punjab submits that the alleged victim categorically alleged before the I.O. and the learned Magistrate that she was subjected to zina bil jabr by the accused which led to addition/insertion of section 376, P.P.C. to the facts of this case; the petitioner has been found involved in the occurrence during the course of investigation, therefore, he may not be set at liberty.

7. After hearing learned counsel for the parties and perusing the record, it is observed that the alleged victim set-out to the path of disaster herself, as can be seen from the contents of the F.I.R., which reveal that she pocketed gold ornaments, prize-bonds and cell phones worth lacs of rupees, besides hot-cash and certain security documents before leaving her house, on the pretext of attending Al-Noor Academy where, she never went. Her mother, while searching for her, went to said academy and to her dismay, learnt that she did not attend her classes and went to some other place. The alleged victim, in her statement under section 161, Cr.P.C. adopted the version that she attended three lectures at the academy on the day of occurrence which fact is directly negated by the contents of the F.I.R. She filed a private complaint under section 452, 506, 34, P.P.C. against her father and other relatives wherein she appeared before the learned Judicial Magistrate, Lahore on 17-9-2012 to depose that she being sui juris had contracted marriage with Zeeshan Zarif (petitioner) of her own accord and she lived with him merrily as his wife. A copy of nikahnama is available on the record which reveals that it was a runaway marriage between the accused-petitioner and the alleged victim. Mst. Amina Shamshad after rejoining her family, took U-turn and adopted the version that she had been misled by the accused who persuaded her to leave the house with cash and gold ornaments etc., so that they might live together and that he took her to the sessions court for solemnization of nikah, which she helplessly agreed to. She further alleged that the accused forcibly raped her before and after the nikah. An ex parte judgment and decree was obtained by the alleged victim on 14-12-2012 from a court of law which has been impugned by the judgment-debtor through an appeal which is still pending adjudication. Whether the petitioner violated the alleged victim forcibly or enjoyed sex with her in a lawful manner is a question which can only be resolved at the time of trial. The statement of the alleged abductee/victim under section 164 Cr.P.C. does little good to the prosecution case being grossly divergent to her statement under section 161, Cr.P.C. The offence, the petitioner is faced against, is punishable with seven years imprisonment which does not fall under the prohibitory clause of section 497(1), Cr.P.C. There exist sufficient reasons to believe that the petitioner's case calls for further probe into his guilt as contemplated by section 497(2), Cr.P.C. Therefore, I accept this application and admit the petitioner to post arrest bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. MWA/M-100/L Bail granted.