2008 PLP 422 (MLD)

MUHAMMAD MOSA K. LEGHARI, J.

The applicant being involved in Crime No.242 of 2006 registered at P.S. New' Karachi on 26-9-2006 under section 16 of Zina (Enforcement of Hudood) Ordinance, which was converted in the Challan into sections 376 and 496-A of the Protection of Women (Criminal Law Amendment) Act, 2006 (Act No. V I of 2006), seeks bail.

2. Brief facts of the case, as per contents of F.I.R. lodged by complainant Muhammad Umer on 26-9-2006, are that the marriage of his daughter namely Parveen aged about 33 years was solemnized with one Ghulam Nabi about 13 years ago and out of this wedlock four children were born. However, about two months 'ago she left the house of her husband due to certain quarrel having taken place between the spouses and started living with her sister namely Shumaila and after one month she came to the house of the complainant and started residing there. On 1-9-2006 at about 10-00 p.m. his daughter Parveen obtained his N.I.C. and left the house on the pretext that she had to take medicines from the doctor. At about 11-30 p.m. she made a call through Mobile Phone No.03002310772 and after saying "Hello Abba", the phone disconnected. The said CLI number was stated to be of one Saleem who is father in law of another daughter of the complainant namely Shumaila. Thereafter Parveen did not return home till night. On enquiry the complainant came to know in the night that Parveen had gone to the shop of Saleem, thereafter she as well as Saleem disappeared. According to the complainant, the said Saleem enticed away his married daughter Parveen with intention to commit Zina with her. After registration of F.I.R. applicant was arrested on 8-2-2007 and the alleged victim lady was also recovered from his possession. As a result the applicant is facing trial in S.C. No. 64 of 2007. Hence this application for bail.

3. It is contended by the learned counsel for the applicant that the applicant has been falsely implicated, that there is inordinate delay of about 25 days in lodging the FIR., that the alleged offence being punishable with seven years imprisonment does not fall under the prohibitory clause of section 497, Cr.P.C., that admittedly the alleged victim was not kidnapped rather she herself left the house and that no rape was committed by the applicant with the victim lady. He accordingly argued that in the circumstances, case of the applicant calls for further enquiry.

4. Conversely, learned counsel for the State as well as complainant opposed the grant of bail. Advocate for the complainant contended that the victim lady in her statement has fully implicated the applicant/accused with the commission of the alleged offence, besides the corroboration by two other witnesses, that she was recovered from the possession of the applicant. He further contended that the applicant/ accused has not come with clean hands inasmuch as he prepared a fictitious document thereby showing that the previous husband of the victim lady namely Ghulam Nabi had divorced her, as CNIC of the said Ghulam Nabi was .issued on 17-10-2006 whereas alleged divorce deed was prepared on 15-6-2006 which contained the CNIC number of Ghulam Nabi, although till that time the same was not issued to him.

5. Arguments advanced at the bar have been considered and the material placed on record has been perused.

6. It appears that the case was challenged under sections 376 and 496-A of the Protection of Women (Criminal Law Amendment) Act, 2006 (Act No.VI of 2006). The maximum punishment provided for the offence of `rape' under section 376 of the ibid law is death or imprisonment for 25 years, whereas maximum punishment provided for the offence under section 496-A is seven years. The offence of `rape' has been defined in section 375 of Act VI of 2006. Clauses (i), (ii) of section 375 relates to having sexual intercourse against the will or without the consent of the victim girl whereas clause (iii) is attracted when there is consent but the consent has been obtained by putting the victim in fear of death or of hurt. Clause (v) relates to sexual intercourse with or without consent when the victim is under sixteen years of age.

7. In the given facts and circumstances of the case, hard evidence will be required to attract the applicability of the above ingredients, constituting an offence of Rape as; admittedly the alleged victim lady left the house on her own and even herself went to the shop of the applicant, as claimed in the F.I.R. itself, which is further supported by the fact that she took N.I.C. of her father with her although, she left her house on the pretext of taking treatment, which- did not necessitate taking along N.I.C. of her father, nor she is under the age of sixteen years as admittedly she being 33 years old. Even the ingredients of clause (iv) of section 375 which according to the learned counsel for the complainant, is applicable to the instant case, is concerned, the same also does not seem to be attracted.

8. Indeed that relations of the lady with her husband were strained. Whether she contracted marriage with the applicant after being divorced, and or the divorce deed was a fabricated document required further inquiry.

9. In view of above, the applicant is granted bail in the sum of Rs.1,00,000 (Rupees One Lac Only) and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T/M-179/K?????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.