2019 PLP 184 (MLD)

MUHAMMAD SHERAZ KAYANI, J.

The supra titled revision petition has been directed against the order of District Court of Criminal Jurisdiction Jhelum Valley dated 09.09.2018, whereby, the said Court accepted the bail application to the extent of petitioner No.2 with a condition that the surety should be her maternal or paternal uncle, while the application to the extent of petitioner No.1 was dismissed.

2. Brief facts forming background of the instant revision petition are that a case under Sections 10/11, 16/19, ZHA and 14, EHA was registered against the petitioners at police station Chanari. For the sake of brevity, the averments of FIR need not to be reiterated because the same have sufficiently been incorporated in the impugned judgment by the Court below. Suffice it to observe that after registration of the case, the accused-petitioners moved an application for bail before District Court of Criminal Jurisdiction Jhelum Valley on 31.08.2018. The said Court after hearing the learned counsel for the parties accepted the same to the extent of petitioner No.2, however, a condition was imposed that the surety should be her real maternal or paternal uncle and rejected the bail application to the extent of petitioner No.1 vide its order dated 05.09.2018, hence this revision petition.

3. Muhammad Saghir Javed, the learned counsel for the petitioners submitted that the Court below while deciding the bail application has ignored the basic principles for grant of bail. He further argued that petitioners are legally wedded spouses, petitioner No.2 contracted marriage with petitioner No.1 with her own freewill and consent and the complainant prepared a forged Nikah-nama, which has been challenged before the competent Court through the suit for jactitation of marriage, as such police has no authority to declare the Nikah with respondent/ complainant as valid and with the petitioner No.1 as illegal. The learned counsel further contended that earlier a writ petition was filed by the petitioners, wherein it was observed by the Court that it is for the Family Court to decide whether Mst. Sonia Farooq contracted Nikah with Muhammad Shawal on 08.10.2017 or not, but the respondents without waiting for the decision of the Family Court, submitted challan against the petitioners. The learned counsel vehemently argued that the learned Court below fell in grave error while imposing condition on the bail order of petitioner No.2 without considering the fact that she is sui-juris lady and understands her good or bad, she cannot be compelled to live with a particular person, specially, in the circumstances, when two Nikah's have been attributed to one lady; and the one which the lady owns as correct will be assumed as genuine. Finally, the learned counsel prayed that by accepting the revision petition the impugned judgment may be set aside and petitioners may be released on bail. In support of his contentions, the learned counsel referred the following authorities;--

1. PLJ 2011 Lah. 127; (2). 2012 YLR 990; (3) 1988 PCr.LJ Lah. 564.

4. On the other hand, Ch. Shoukat Aziz, the learned counsel for the complainant while controverting the arguments raised by the learned counsel for the petitioners submitted that petitioner No.1 abducted petitioner No.2 for committing zina and thereafter prepared a forged and fake Nikahnama. He further argued that petitioner No.2 and complainant are legally wedded husband and wife, living together as spouses, and Nikahnama filed by the petitioner No.1 is a forged and fabricated document. He further contended that the learned Court below has rightly rejected the bail application of the petitioner No.1 and the condition has rightly been imposed while allowing bail to the extent of petitioner No.2. The learned counsel defended the impugned order on all counts.

5. The learned AAG, supported the arguments advanced by the learned counsel for the complainant and also referred case law reported as PLD 1985 Lah. 512 and 1982 PCr.LJ 948.

6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

7. It may be stated here that bail matters are to be decided in the light of the material collected by police during investigation of the case. Credibility, scrutiny and truthfulness of the witnesses are to be adjudged by the trial Court at the time of the appreciation of evidence after the conclusion of trial. This Court while deciding bail application has to look into the FIR, the statement recorded under section 161, Cr.P.C. and other incriminating material brought by the prosecution including the recoveries etc. are to be taken into account.

8. In the present case, it is alleged by the complainant that petitioner No.1 has developed illicit relations with his wife Mst. Sonia Farooq, petitioner No.2 herein and when he was not present at home, petitioner No.1 abducted his wife with the help of other co-accused for committing zina and thereafter prepared a forged Nikah-Nama. It is further alleged that in presence of 1st Nikah, second Nikah cannot be made and if it is done, the same is against the norms of law and Shariah, as such petitioner No.1 is involved in heinous offence. It is relevant to mention here that petitioner No.2 has filed a suit for jactitation of marriage against the complainant, which is pending adjudication and earlier both the petitioners have also filed a writ petition before this Court, which was decided and it was observed that it is for the Family Court to decide the controversy of marriage. The learned counsel for the complainant stressed on the point that the petitioner No.2 is legally wedded wife of complainant and this fact has also been admitted by her, when she filed a suit for dissolution of marriage before Family Judge Gupis/Yasin, however, as discussed earlier deeper appreciation of evidence is not permissible at bail stage. However, from the tentative assessment of the material collected by police, prima facie, petitioners are connected with the alleged offences. The learned Court below while deciding the bail application of the petitioners held that as no objection has been raised by the complainant side for the release of petitioner No.2, Sonia Farooq and she was allowed bail, however, a condition was imposed by the Court below that if she furnishes personal bond of her maternal or paternal uncle (Mehram), she will be released on bail. As the petitioner No.2, Sonia Farooq is a woman and under section 497, Cr.P.C., in case of women accused, the Court has been given discretionary powers to release a female accused, though she is involved in the case punishable with more than 10 years imprisonment or death sentence and particularly in the instant case when there was no objection from the complainant side and the investigation was also completed, in such circumstances, the petitioner No.2 was rightly ordered to be released on bail, however, in my view the learned Court below fell in grave error while imposing the condition to the extent of petitioner No.2. I am of the considered view that an accused person has a right to furnish surety of his own choice. Liberty of a person cannot be curtailed due to his or her sex, as the constitution prohibits such gender discrimination. The approach of the learned Court below in this regard seems to be result of subjective sense of morality which is against the law and norms of justice. A women accused should not be treated like a thing, her legal and constitutional right cannot be snatched due to personal thinking or preference of a presiding officer. The petitioner No.2 Sonia Farooq is a sui-juris lady, the Court was not seized with the question of custody of any minor or insane person, when the learned Court below had to decide the bail application, it was not supposed to compel the accused to get surety bond from a particular person of the choice of the Court. Section 499 of Cr.P.C., provides the terms and condition of the surety bond, it does not visualize any particular individual as a surety. Obviously, the surety should be a solvent person only. After release, if an offence is committed, the law shall take its own course. So by imposing a condition of "Mehram" as surety, the learned District Court of Criminal Jurisdiction travelled beyond its jurisdiction. My this view finds support from a case reported as 1988 PCr.LJ 564, wherein it was held as under;-- "An accused person has a right to furnish surety of his own choice and under the law he cannot be compelled to produce particular person as his surety."

9. So far as the case with regard to petitioner No.1 is concerned, in this regard, it is relevant to mention here that, prima facie reasonable grounds exist to believe that he is connected with the offence, because the record reveals that petitioner No.2 is already married with complainant, although she has filed a suit for jactitation of marriage and refuted to have any Nikah with complainant, but, prior to that she had also filed a suit for dissolution of marriage before Judge Family Court Gupis/Yasin meaning thereby that she admitted the Nikah with complainant. Had she not filed the suit for dissolution of marriage, the position of the case could have been different and the Court might have observed, as generally it is held, that which of the two Nikah is valid would be determined after recording evidence, but in the present case after filing of the suit for dissolution of marriage by the petitioner No.2, prima facie her Nikah with complainant does not become doubtful. So, before the judgment in favour of the petitioner No.2 by Family Court, the first Nikah cannot be disbelieved. Needless to say that case of petitioner No.1 comes within the prohibitory clause of section 497 of Cr.P.C. and in such cases an accused can be enlarged on bail only if he brings his case within ambit of subsection (2) of said provision or in any exception given in subsection (1) of the said section. No such exception has been pointed out. I have also gone through the impugned order of the Court below to the extent of petitioner No.1 and found the same to be quite in accordance in law.

10. The learned counsel for the complainant also referred an unreported judgment of the apex Court of AJ&K titled "Muhammad Latif and Faisal Azad and others decided on 31.01.2018 and submitted that in the light of this judgment, the trial Court has rightly imposed the condition. In that case the accused was sent to Darul-Aman and furthermore the facts of the case in hand are distinguishable, therefore, the same is not applicable. In the light of what has been stated above, I partly accept this revision petition by setting aside the impugned order dated 05.09.2018 to the extent of condition of particular surety and it is ordered that the accused-petitioner No.2 shall be released forthwith on furnishing bail bond of her own choice in the sum of Rs.50,000/- and personal bond in the like amount to the satisfaction of any Magistrate 1st class Jhelum Valley, if not required or involved in any other case or offence. The revision petition to the extent of petitioner No.1 stands dismissed. With the above modification, the revision petition stands disposed of accordingly. JK/14/Sh.C.(AJ&K) Order accordingly.