2018 PLP 195 (YLRN)

ABDUL SAMI KHAN, J.

Through this petition under section 497 Cr.P.C. the petitioner has sought bail after arrest in case FIR No.86/17 dated 16.02.2017 under sections 365-B, 376, P.P.C., Police Station City Ali Pur, District Muzaffargarh.

2. I have heard the arguments advanced by learned counsel for the parties and have perused the record with their able assistance. This is bail after arrest and only tentative assessment is permissible at this stage. It has been noticed by this Court that there is an unexplained delay of twenty days in registration of FIR, which prima facie shows that the FIR has been got registered after due deliberation and consultation. In FIR, the complainant has levelled allegation of abducting his sister Mst. Rimsha Riaz against the petitioner and his co-accused, but according to Nikah Nama appended with this petition, a valid Nikah exists between the alleged victim Mst. Rimsha Riaz and co-accused Muhammad Waqas Ali, brother of the petitioner. Apart from Nikah Nama, attested copy of private complaint filed by the alleged victim against her father and brothers for the offences under sections 452, 506-B, 34, P.P.C. along with her cursory statement recorded by learned Judicial Magistrate is also available on the record, wherein she categorically stated that she has contracted marriage with said Muhammad Waqas Ali with her free will and consent and against the wishes of her parents. Even in a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed by alleged abductee against her father and brothers, including the complainant, bearing Writ Petition No.1566 of 2017, she has refuted the allegation of her abduction by the petitioner and his co-accused. During arguments, learned Deputy Prosecutor General emphasized on the statements under sections 161 and 164 Cr.P.C. of the alleged abductee, wherein she has levelled allegation of zin-bil-jabr against the petitioner and co-accused. In this regard, I would like to observe about this disgusting trend in our society that firstly the girl elopes with her paramour, solemnizes marriage with him and later on when she joins her parents, she takes somersault and implicates her husband and in-laws on the asking of her parents. Even otherwise, it is settled law that such type of dispute has to be decided by Family Courts which is the best forum. Reliance can be placed upon the case of "Muhammad Azam v. Muhammad Iqbal and others" reported in PLD 1984 SC 95, wherein the Hon'ble Supreme Court of Pakistan has been pleased to hold as under:-- (nn) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

Ss. 3 & 10(3)-West Pakistan Family Courts Act (XXXV of 1964), S. 5

Offence of Zina-bil-Jabar liable to Tazir

Plea of valid marriage by accused

Decision of Superior Court deciding issue of valid marriage in criminal case of Zina

Family Court, whether can decide question of valid marriage again

Interaction of S. 3, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vis-a-vis S. 5 of West Pakistan Family Courts Act, 1964. When section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provides that its provisions shall have effect notwithstanding anything contained in any other law for the time being in force, the intention underlying the same is not such so as to materially reduce the effect of the mandate in section 5 of the Family Courts Act to the effect that the Family Court shall have exclusive jurisdiction regarding the matters specified in the Schedule; which includes, amongst others, the subjects of dissolution of marriage, restitution of conjugal rights and jactitation of marriage. Be that as it may, even if there is some seeming conflict the same would be removed by the practical application of these laws." The facts discussed hereinabove create doubt in the prosecution story and it is settled law that benefit of doubt can be extended in favour of the accused even at bail stage. Admittedly the petitioner is previous non-convict; never involved in any other case of such like nature. He is behind the bars since his arrest without any fruitful progress towards the conclusion of his trial. Investigation of the case is complete and he is no more required for further investigation. No useful purpose would be served by keeping him behind the bars.

3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.100,000/- (Rupees one hundred thousand only) with two sureties, each in the like amount to the satisfaction of the learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. MQ/A-8/L Bail granted.