2010 P Cr (PLP)

CH. IFTIKHAR HUSSAIN, J.

Petitioners Muhammad Akhtar and Mumtaz Ahmad through the instant petition have prayed for post arrest bail in case F.I.R. No.140 registered under section 365-B, P.P.C. with Police Station Kameer, District Sahiwal on 29-5-2009. Later on, the police have added section 376, P.P.C. in the same.

2. Briefly the prosecution case as per the F.I.R. is that on 29-5-2009 at about 10-00 a.m., Ghulam Ahmed, Shah Niaz, Mumtaz Ahmad, Muhammad Akhtar and an unknown person, while having firearms, on such arms point have abducted Mst. Tasawar Bibi, the sister of the complainant and they not only cut indecent jock with her and his other sister Noor Bano but also hurled filthy abuses on them.

3. After hearing the learned counsel for the parties and perusing the record, I find that though the petitioners have been named in the F.I.R., as the abductors, besides the others, but it is the contention from their side that the alleged abductee Mst. Tasawar Bibi being sui juris of her own accord has `eloped with Ghulam Muhammad co-accused and contracted valid marriage with him and so, they have committed no offence; and that they during the investigation by D.S.P. concerned have been found to be innocent in this case. There is with this petition, copy of Nikahnama dated 20-5-2009, showing the solemnization of Nikah/marriage between the alleged abductee Mst. Tasawar Bibi and their co-accused Ghulam Muhammad. It may be interesting to note here that this Nikah is prior in time than the date of the alleged incident as the date of solemnization of their marriage recorded therein is. 20-5-2009, whereas the alleged incident is of nine days thereafter i.e. 29-5-2009. Although on the record, I have found the statement under section 161, Cr.P.C. of the alleged abductee, wherein she is purported to have stated that she was abducted by the accused persons mentioned in the F.I.R. and thereafter, her Nikah forcibly was performed with Ghulam Ahmad. I have no hesitation to say here that the question of the legitimacy or otherwise of such Nikah is to be gone into in due course of trial.

4. There is, however, no allegation of Zina against them. It has not been denied by the other side that they during the investigation by the D.S.P. concerned have been found to be innocent in this case. Hence, to me for all these reasons, their case is open to further inquiry into their guilt and so the same is covered under subsection (2) of section 497, Cr.P.C.

5. It may be mentioned here that the learned counsel for the complainant has pointed out that their trial stands commenced and in the same one prosecution witness stood examined and on the last date i.e. 24-2-2009, some other P.Ws. were also present there but due to the tactic adopted by their (petitioners) side not to produce their counsel, the case was adjourned to 15-10-2009, for the prosecution evidence subject to payment of Rs.500 as diet money to the P.Ws. and in such situation when the trial has commenced, they may not be shown indulged in the matter. I am afraid that this position may be as it is but it is also well settled proposition in criminal administration of justice that case of an accused, when may be found fit for bail, being of further inquiry, he then cannot be refused such relief as it is a matter of right and the latter relates to practice and the right is to take precedence over practice. In this regard, if any precedent is needed, then the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 can be referred with advantage.

6. They are behind the bars and stated to be previous non-convicts.

7. In these circumstances, I find the case for their enlargement on bail has been made out. Resultantly, the petition is accepted and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs.100,000 (rupees one lack only) each with one surety each in the like amount to the satisfaction of the learned trial Court.

8. However, I may observe here that the above observations, are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.

9. However, the learned trial Court is directed to expedite the conclusion of their trial as early as possible but preferably within two months from today under intimation to Deputy Registrar (Judicial) of this Court. N.H.Q./M-813/L Bail allowed.