2017 PLP 586 (YLR)

MALIK HAQ NAWAZ, J.

The local police registered a case under sections, 365-B/34, 494, 420, 493-A, 471 and 468, P.P.C. against the petitioner vide FIR No.103/15 dated 11.11.2015 at Police Station Jutial, Gilgit.

2. The petitioner/accused applied for bail before the learned Sessions Judge Gilgit which was declined vide order dated 03.05.2016, hence this petition for the same relief.

3. This case has a chequrred history giving rise to the present unfortunate incident. One Mst. Aneeta Nawaz was engaged with the present petitioner/accused but during substance of engagement, she eloped with one Pervaiz and married with him in the year 2012 but as per police record, she also remained in touch with the petitioner/accused her ex-fianc e. On 7.11.2015, the said lady was found missing and after hectic efforts, could not be traced. On the same day one Naveed Ahmad submitted an application that his Bhabi is missing and he suspected present petitioner/accused for abduction of the lady.

4. The police started investigation under section 157, Cr.P.C. and during investigation one Ahmad Ali Shah, father in law of the lady handed over a piece of small paper, which was containing a Mobile No. 0312-5416203 found in the personal belonging of Aneeta Nawaz. The said cell no during inquiry/investigation of the local police, was found registered in the name of petitioner, which provided a clue to the police to proceed ahead. On 04-12-2015 on spy information, when police conducted a raid on a house at Konodass and arrested both the accused from a room of the house. The lady was sent to City hospital for medical examination and then it divulged during investigation that both the accused contracted marriage on 13.11.2015 at Abbottabad, the Nikah Nama is also available on record. There is also an affidavit of Mst. Aneeta Nawaz that she has been divorced by her husband about 4 months before the occurrence. On 02-12-2015, the said lady appeared before the learned Judicial Magistrate and got recorded her statement to the effect that she left the house of her husband at her own accord and she has not been abducted by anybody and the FIR lodged by her in laws is baseless and unfounded.

5. The learned counsel for the petitioner/accused submitted that the case is false and the police when could not establish the imposed penal Sections and they maliciously inserted sections 493-A, 494, 420, 468 and 471, P.P.C. and the local police was not competent to register an FIR against the petitioner as there is a clear bar in Section 198, Cr.P.C. for registration of FIR and the aggrieved party has the remedy through filing a private complaint, which has not been done, thus per learned counsel, the entire proceedings are illegal and unwarranted, bringing the case within the purview of Section 497(2), Cr.P.C. and the benefit of conflicting version of the prosecution be extended to the accused being favorite child of law.

6. On the other hand the learned Dy.A.G. submits that the petitioner is directly charged in the FIR and the evidence collected by the prosecution connects the accused/petitioner with the crime. The learned Dy. A. G. read out the statements of some P.Ws. and also showed the Nikah Nama, which was prepared at Abbottabad by the petitioner/accused and the petitioner has admitted his signatures on the said Nikah Nama during investigation. The learned Dy. A.G. submitted further that challan of the case has been put in the Court and the petitioner is not entitled for concession of bail.

7. After hearing the parties and perusal of record, it is evident that the lady was not abducted by the petitioner/accused rather she eloped with the petitioner on her own accord but very strangely no punishment is provided either in P.P.C. or in Hudood Laws for elopement and despite of directions by the Federal Shariat Court no amendment in Hudood Laws has yet been carried out.

8. The statement of Mst. Aneeta Nawaz dated 02.12.2015 is being blow to the story of prosecution and the authenticity of second marriage and its implication on the merit of the case are the factors, which will be thrashed by the trial Court after recording the evidence of both the parties, which makes the case as one of the further inquiry as contemplated under section 497(2), Cr.P.C.

9. The bail cannot be refused as a measures of advance punishment and an accused cannot be denied the concession of bail, if there appears a slightest doubt in the story of prosecution and mind of the Court is satisfied that there is some exaggeration of facts on the part of either of the parties and benefit of such event shall be resolved in favour of the accused.

10. As a result of above discussions the petitioner/accused is allowed bail subject to his furnishing of bail bond in the sum of Rs.100,0000/- (Rupees ten lac only) with two local sureties each in the like amount to the satisfaction of trial Court. HBT/40/GB Bail allowed.