2012 P Cr (PLP)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal under section 25 of the Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, has been addressed against a judgment of the learned Shariat Court dated 15-2-2010, whereby a revision petition filed by the appellant, herein, has been dismissed.

2. The precise summary of the facts is, that on 31-1-2008, a criminal case under sections 10/16 and 19, Z.H.A., was registered against accused-respondent No.1 and some other persons at Police Station, Barnala, wherein it was alleged that the complainant's daughter, Nazia Bibi, whose Nikah was solemnized with one Naveed Anjum on 12-1-2008 but 'Rukhsati was not affected, whereas in the morning, on 29-1-2008, said Nazia Bibi was found missing from complainant's residential house. A search was made out for her. Meanwhile the appellant-complainant contacted one Abdul Haq who told that "that they have done what they aimed". He came to know that her daughter has been abducted. The appellant-complainant nominated in the F.I.R. Abdul Haq, Abdul Qayyum, Shakeela Bibi, Muhammad Idrees, Mst. Fazal Bibi, Muhammad Bashir, Shahjahan, Majid Hussain, Ghalib and Abdul Sattar being involved in commission of alleged offences. During the investigation, the accused-respondent and Nazia Bibi, pleaded the defence that they have contracted marriage on 25-1-2008, thus, the alleged case has been maliciously registered for victimization. All the other accused implicated in the case were enlarged on bail. Accused-respondent No.1 also applied for bail in the trial Court, which was rejected, however, the District Criminal Court Bhimber vide order dated 26-5-2009 granted bail on the ground that the matter is one of further inquiry. Feeling aggrieved, the appellant-complainant challenged the propriety of bail granting order through revision petition filed in the Shariat Court, which has been dismissed through the impugned order.

3. Raja Inamullah Khan, the learned counsel for the appellant, after brief statement of the facts, mainly objected to the observation made by the Shariat Court in para 5 of the impugned judgment. He contended that that the Shariat Court has declared the marriage of accused-respondent with Nazia Bibi as valid one, which is against the principle of administration of justice. It is further submitted that the prosecution has brought on record solid proof of commission of alleged offence by the accused-respondent, therefore, he does not deserve for concession of bail. The District Criminal Court has wrongly extended the concession of bail. The Shariat Court has wrongly upheld the bail granting order, therefore, by accepting this appeal, the impugned order may be recalled.

4. Raja Ghanzafar Ali, Advocate-General, also adopted the arguments advanced by the learned counsel for the appellant.

5. Ch. Muhammad Ashraf Ayaz, the learned counsel for the accused-respondent, while controverting the arguments of the learned counsel for the appellant, vehemently contended that F.I.R. has been registered on 31-1-2008, whereas respondent and Nazia Bibi entered into contract of marriage on 25-1-2008, thus it is evident from the record that the case has been registered against accused-respondent only for victimization and harassment. He further contended that even otherwise two "Nikahnamas" have been brought on record. There is also statement of Nazia Bibi on the record that she has contracted the marriage with the accused-respondent by her own free will. It is an admitted fact that the couple has also a child from their wedlock. Thus, the accused-respondent has rightly been granted the concession of bail. However, he will have no objection, if the Court deems it proper and quash any observation made by the Shariat Court, without recalling the concession of bail.

6. We have paid our utmost attention to the arguments of the learned counsel for the parties and also gone through the record. The admitted position is that the accused-respondent and alleged abductee have taken specific defence that they have contracted marriage and they are also parents of a baby. At the bail stage, no final conclusion can be drawn by the Courts and only tentative assessment of facts have to be made. In peculiar facts and circumstances of this case, we are also of the opinion that while taking into consideration the evidence collected during the investigation and the defence version of the accused, the commission of alleged offence by the accused-respondent requires further probe. In this case the other accused have already been enlarged on bail and the appeals filed for cancellation of their bail have been withdrawn even otherwise the propriety of rule of consistency goes in favour of the accused-respondent. It is also a celebrated principle of law governing the bail matter that the criteria for granting and recalling bail is quite different. Once a bail is granted to an accused by the Court of competent jurisdiction, it can only be recalled if it appears that it has been granted in violation of the principle of law, without application of judicial mind or in arbitrary or capricious manner. Whereas, no such proposition is involved in the case in hand, therefore, in our considered view, the Court below while granting bail have not violated the principle of law and there are no compelling reasons to recall the concession of bail, extended to the accused. However, the contention of the appellant's counsel that the observation of the learned Shariat Court in para 5 of the impugned judgment "Out of this wedlock a child was also born" creates impression that the Shariat Court has declared valid the respondent's marriage with Nazia Bibi. Although these words, are attributed to the accused-respondent but creates some ambiguity, which may mislead the trial Court, therefore, it is clarified that whether the child is born out of valid wedlock or not? is a question yet to be resolved by the competent court. With these observations this appeal is disposed of. H.B.T./45/S.C.(AJ&K) Order accordingly.