2013 PLP 990 (YLR)

ROOH-UL-AMIN KHAN, J.

After having failed to secure bail from the Courts below, accused/petitioners involved in case F.I.R. No. 131 dated 21-8-2012, registered under sections 365-B/496-A/494 read with section 34, P.P.C., Police Station Kalam, District Swat, have applied for their post arrest bail to this Court.

2. On 21-8-2012, complainant Abdur Rahman made report to the police to the effect that two years ago, 'Nikah' of his sister Mst. Rohila Bibi, aged about 18/19 years, was performed with one Qarib-ur-Rehman son of Hazrat Wali. On the night of occurrence at 'Isha Wela', Akbar Nawab, Said Nawab sons of Juma Said, Muhammad Amin, Muhammad Nisar sons of Juma Khan came to the tailor shop of his brother, situated in Saleh Abad and asked him about stitching of clothes, on refusal of his brother, they within 25/30 minutes, disappeared. After some time, complainant was informed his mother Mst. Bibi Rohamza that the above-named persons have abducted his sister Mst. Bibi Rohila for illicit purpose and for marrying her to Akbar Nawab. The occurrence is stated to have been witnessed by Taj Malook, Sher Zada. Hence, the present case vide F.I.R. referred to above, was registered against the accused/petitioners.

3. Having heard the learned counsel for the parties, record was thrashed out from cover to cover. I have given anxious consideration to the arguments of the learned counsel for the parties. The prosecution case is that Mst. Rohila Bibi was abducted from her home on 18-8-2012, in the early hour of night i.e. 2210 hours. According to the F.I.R., on the day of occurrence, the accused party had come to their shop for asking about stitching some clothes. On refusal of the brother of complainant, they disappeared and in the meanwhile, the mother of complainant, namely, Mst. Bibi Rohamza informed him about the abduction of Mst. Rohila Bibi by the petitioners and co-accused Akbar Nawab. Despite the fact that the complainant was informed promptly by his mother about such a heinous offence even then, he kept mum and failed to lodge the report with the local police, within time. The case was registered against the accused/petitioners on 21-8-2012, with an inordinate unexplained delay of three days, which indicates that the F.I.R. has been recorded after deliberation and consultation. The abnormal delay in lodging the report, would be sufficient to bring the case of accused in the ambit of further inquiry.

6. The alleged abductee, Mst. Rohila Bibi, appeared before the Magistrate on 28-8-2012 and recorded her statement under section 164, Cr.P.C., wherein she categorically denied the allegation levelled in the F.I.R. She disclosed that being 'sui juris', she has left her home of her own accord and contracted marriage with Akbar Nawab with her own sweet will. She further disclosed that prior to her marriage, with Akbar Nawab, she has not remained in 'Nikah' of anybody including Qarib-ur-Rehman; she along with Akbar Nawab surrendered before the local police and produced a valid 'Nikah-Nama', dated 20-8-2012. Record divulged that she has also filed a suit in the Court of Judge Family Court, Bahrain, Swat, against Qarib-ur-Rehman, for jactitation of marriage. The divergent version of the alleged abductee Mst. Rohila Bibi would be sufficient to shake the judicial conscience in order to entitle the accused for bail on ground of further inquiry.

7. According to the version of the complainant the `Nikah' of the abductee has already been solemnized with Qarib-ur-Rehman on 8-7-2012, in lieu of two 'Tola' gold ornaments, as dower, while Mst. Rohila Bibi denied the Nikah' with Qarib-ur-Rehman and claimed that she has not abducted by any person, rather she has contracted 'Nikah' with Akbar Nawab before lodging of F.I.R. At this stage, it will not be out of context to refer that Qarib-ur-Rehman has never come forward for registration of the case against Mst. Rohila Bibi or Akbar Nawab, and admittedly the F.I.R. was lodged by Abdur Rahman, brother of Mst. Rohila Bibi. The alleged abductee owned her marriage before the Executive Magistrate Bahrain, Swat as well as before the Judicial Magistrate, at the time of her bail application, dated 21-11-2012. She has also filed a suit against Qarib-ur-Rehman, for jactitation of marriage before Judge Family Court, Bahrain Swat. From the above facts, it is clear than crystal that it is a case of two versions, one given by complainant in the F.I.R. and the other advanced by the abductee. The question of previous 'Nikah' has to be decided by the Judge Family Court, but at present it is manifest that the abductee is living a happy life with co-accused Akbar Nawab.

8. In the instant case, there is no allegation of abetment or instigation against the present petitioners which is always a necessary element in such like cases. Where evidence with regard to allegation of abetment or instigation is lacking, the concession of bail shall not be withheld and shall be extended in favour of the accused. The main accused Akbar Nawab and Mst. Rohila Bibi, have already been released on bail by the Judicial Magistrate vide order dated 21-11-2012. The case of the present petitioners, in circumstances and in light of the above discussion, is on better footing than the case of accused Akbar Nawab and Mst. Rohila Bibi, thus under principle of consistency, they are entitled to the concession of bail.

9. The arguments of the learned counsel for the complainant that the act of the accused is unsocial and un Islamic, is repelled. The alleged abductee is a 'sui juris' girl and has selected her life partner, without the consent of 'Wali', which is not required under the law. Moreso, bail should be ordinarily allowed disregarding the ground of antisocial nature of the offence, provided the petitioner is entitled to bail on merit.

10. The upshot of the above discussion is that a case of further inquiry within the meaning of section 497(2), Cr.P.C. has been made out in favour of the petitioners, to say the least. Consequently, the bail application in hand is accepted and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 (Rupees One Lac), each with two sureties in the like amount to the satisfaction of Illaqa/Judicial Magistrate/ M.O.D., who shall ensure that the sureties are local, reliable and men of means.

11. Before parting with this order it is however, clarified that the discussion and observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail application. MWA/6/P Bail granted.