1998 P Cr (PLP)

Abdur Rashid Karhani, Asstt. A.‑G. for the State. This is an application under section 561‑A, Cr.P.C. for the quashment of proceedings and a case under F.I.R. No.200 of 1997 sub judice before Tehsil Criminal Court Rawalakot, Poonch. The accused petitioner (petitioner hereinafter) has also, in alternative, prayed for his enlargement on bail.

2. The precise facts culminated into above titled petition are that a F.I.R. was lodged at Police Station Rawalakot by the complainant Javaid wherein it was stated that he alongwith his parents and other family members was living in his house situated in Village Dhamnui. On 22‑12‑1997 while he was at his home, his brother Mr. Muhammad Sadhir went into the room of his sister Mst. Samina Akhtar in order to serve her with a cup of tea and found her (Samina) missing from the room. As per report of the complainant, he and other members of his family started searching Mst. Samina Akhtar and ultimately on 26‑12‑1996 it came into his knowledge that the petitioner with the connivance of Rashad, Muhammad Saleem, Muhammad Saeed and Mst. Saleem Jan had kidnapped his sister. It was further alleged in the F.I.R. that the petitioner Muhammad Arshad was committing Zina with Samina Akhter while keeping‑her in his custody at some anonymous place. The police concerned on receiving this verbal report registered a case under sections 10, 11 and 19 of Zina Enforcement of Hudood Act against the petitioner alongwith other accused persons nominated in the F.LR.

3. During investigation, the accused persons alongwith Mst. Samina Akhtar (reported abductee) were arrested except Muhammad Saeed who absconded during investigation. After completion of investigation, the petitioner Muhammad Arshad, Samina Akhtar, Muhammad Saleem, Muhammad Rashad and Mst. Naseem Jan were challaned before the Court of competent jurisdiction and now they are facing trial before Tehsil Criminal Court, Rawalakot. The accused Muhammad Saeed has been challaned in his absence and the Court has been requested to initiate proceedings under section 512, Cr.P.C. against him.

4. After presentation of challan against the accused persons, an application for concession of bail was moved before the trial Court. The said Court allowed the application of the accused persons except the petitioner Muhammad Arshad. Thus, accused Mst. Samina Akhtar, Muhammad Saleem, Muhammad Rashad and Mst. Naseem Jan were enlarged on bail by the trial Court vide its order dated 20‑1‑1998.

5. The petitioner feeling aggrieved by the aforesaid order made a second application before the District Criminal Court, Rawalakot, Poonch but he met the same fate. Hence this petition under section 561‑A, Cr.P.C. alongwith an alternative prayer to release him on bail.

6. The learned counsel for the petitioner argued that the petitioner was not connected with alleged offences and a false case had been fabricated against him. He further submitted that the evidence collected by the investigating agency by itself suggested acquittal of the petitioner and as such the proceedings against him in the trial Court were liable to be quashed being a futile exercise. The learned counsel also maintained that in case it was not felt proper to quash the proceedings under section 561‑A, Cr.P.C., the petitioner merited concession of ball as the case against him requires further inquiry under section 497(2), Cr.P.C. The learned counsel representing the complainant and learned Assistant Advocate‑General while opposing the application argued that the application under section 561‑A, Cr.P.C. deserved its dismissal on the sole ground that an application under section 249‑A, Cr.P.C. was sub judice before the trial Court and the petitioner deliberately concealed the fact from this Court. Their further contention was that the petitioner should have moved a separate ball application and he could not be released on an alternative request made in the application under section 561‑A, Cr.P.C. They also contended that the petitioner was prima facie connected with the alleged offences and, being the position, he was not entitled to concession of bail.

7. After giving my earnest thought to the respective submissions of the learned counsel for the parties and perusal of record made available, I deem it proper to deal firstly with the objection regarding maintainability of the application under section 561‑A, Cr.P.C., when another application under section 249‑A, Cr.P.C. is sub judice before the trial Court.

8. It is correct that an application under section 249‑A, Cr.P.C. is pending in the trial Court. This application has been moved by the petitioner. It is apparent from the contents of both the applications that the substance in the aforesaid applications is the same. i.e. the charge being groundless and no probability of accused to be convicted. The perusal of section 561‑A, Cr.P.C. and section 249‑A, Cr.P.C. shows that the relief under section 249‑A, Cr.P.C.' is as effective as under section 561‑A, Cr.P.C. The petitioner could claim his acquittal from the Trial Court and in fact he had claimed so. The Trial Court is fully empowered to acquit an accused person under section 249‑A, Cr.P.C. provided at any stage of the trial the charge against the accused is found groundless or no probability existing of accused being convicted. The jurisdiction available to Shariat Court under section 561‑A, Cr.P.C. is the same as available to the Trial Court under section 249‑A, Cr.P.C. Keeping in view the language used in both the above‑referred sections, the proper course is to allow first Trial Court to exercise its jurisdiction available to it under section 249‑A, Cr.P.C. and if the application is dismissed, then of course, the resort can be had to the remedy available to Shariat Court under section 561‑A, Cr.P.C. I am fortified by the view expressed in the judgments in two different cases titled Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607 and F. Brumel and 3 others v. The State PLD 1986 Kar.

390. For convenience, the relevant observations made by the learned Judges in the aforesaid authorities are given below. In Nasir Ali's case it was held as under: "There is another aspect of the matter. There is a remedial provision which has been introduced in the Criminal Procedure Code by Law Reforms Ordinance, 1972. It is section 249‑A. It enables an accused facing trial to obtain an order of acquittal from the Magistrate if at any stage the charge is found to be groundless or there is no probability of the accused being convicted of any offence. The substance of the claim made by the appellant in the application under section 561‑A, Cr.P.C. is exactly the same on which the ‑can claim an acquittal under section 249‑A, Cr.P.C. is namely that the charge is groundless and that there is no probability of the accused being convicted of any offence. This is a relief still available to the appellant not in any manner in curtailment of the power possessed by the Court under section 561‑A, Cr.P.C. or in derogation of it." In F. Brumel's case it was observed: "Lastly the main grievance of the applicants appears to be the fact that two applications under section 265‑K, Cr.P.C. and the one application under section 561‑A, Cr.P.C. are pending before the trial Court since a very long time and no final orders have been passed on them. There is also prayer for quashment of proceedings on the ground that they amount to abuse to process of the Court. It is well‑settled principle of law that jurisdictions under sections 561‑A, 249‑A and 265‑K, Cr.P.C. available to the High Court and the Trial Courts are co‑extensive and concurrent because remedy available under section 265‑A, Cr.P.C. as well as under section 249‑A, Cr.P.C. is as effective and substantially the same as quashment proceedings under section 561‑A, Cr.P.C. In the circumstances, the proper course is to allow first the Trial Court to exercise jurisdiction under section 265‑K, Cr.P.C. or 249‑A, Cr.P.C. whichever is available and if the application is dismissed then resort can be had to the remedy available in the High Court. Since applications under section 265‑K, Cr.P.C. are already pending in the Trial Court. We direct trial Court to dispose of these applications as well as applications under section 540‑A, Cr.P.C. within one month from today and report compliance." With the above observations the application to the extent of quashment) of proceedings under section 561‑A, Cr.P.C. stands dismissed and the Trial Court is directed to dispose of the application made under section 249‑A, Cr.P.C. by the petitioner under law.

9. Another objection was raised by the counsel for the complainant regarding maintainability of the other portion of the application i.e. alternative request made for concession of bail in the application under section 561‑A, Cr.P.C. The learned counsel argued that a relief for concession of bail can only be granted to the petitioner in case he moves the Court through a separate bail application. The learned Advocate, when confronted as to show under what provisions of law the aforesaid request is barred, he failed to satisfy the Court. Hence this objection is brushed aside.

10. It is true that the detailed examination of the evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the cases cannot be decided in vacuum. If the evidence on record prima facie suggests the release of an accused person on bail he must get the benefit. There is no direct evidence in the instant case. The circumstantial evidence collected by the prosecution pertains to recovery of Mst. Samina Akhter from the custody of the petitioner, the medico‑legal report of the said Lady about her virginity and *age and a medico‑legal report about the potency of the petitioner: During arguments before this Court, an original copy of Nikahnama between Mst. Samina and petitioner was placed on the file of this Court. The learned counsel for the complainant also placed a document showing a cancellation order from the office of Registrar Nikah. According to the copy of Nikahnama the marriage contract took place between Mst. Samina Akhtar and the petitioner on 31‑12‑1997 in presence of witnesses. The document produced before this Court pertaining to cancellation of registration of Nikah between aforesaid persons shows that the registration of aforementioned Nikah was cancelled on the basis of minority of the said girl. The is yet another document on the file of this Court i.e. a copy of statement of Mst. Samina recorded by S.D.M., Hajira on 30‑12‑1997. The police has placed a School Certificate on the record of the case also showing the age of Mst. Samina as 13 years. The age of the said girl as per X‑Ray report is 19 years. The medico‑legal report about sexual intercourse shows her to be an adult lady. The age recorded in Nikahnama and statement made in the Court of S.D.M., Hajira is about 18 years, whereas the age as per School Certificate is 13 years. By having a bird's eye view, the said girl appears to have attained the age of puberty.

11. Even if it is accepted that her age as per School Certificate is 13 years, she can be an adult person. The definition of adult and minor as per statute book is that an "adult" means a person who has attained the age of 18 years, in case of male, and 16 years in case of female or has attained age of puberty whichever is earlier. The "minor" means a person who is not adult. It means that a person, being female can be "adult" before attaining the age of 16 years. According to my humble opinion the X‑Ray report pertaining to the age of some person should be given preference to the entries made in School Certificate. This view finds support from a judgment of honourable Supreme Court of Azad Jammu and Kashmir in a case titled Gulzar Khan v. The State PLD 1987 SC (AJK)

9. In the aforesaid authority it was held by the honourable Judge of the Supreme Court that the reports of Radiologist pertaining to age are given preference to the entries made in school certificate. The evidence on record prima facie suggests that Mst. Samina Akhtar is an adult person. It is very important to note here and the parties to the case must bear in their mind that Mst. Samina Akhter has been challenged as co‑accused in the instant case and she is facing trial in the aforesaid case.

12. The Nikah between the petitioner and co‑accused Mst. Samina Akhter is admitted by the parties with the difference about the age of the said girl as it appears from order of cancellation of registration of Nikah placed on file of this Court by the complainant counsel. This order shows that it was passed ex parte. The co‑accused Mst. Samina has already been released on bail and she was examined by the Registrar Nikah while coming from the custody of her parents in absence of the petitioner. The orders of the Court below are based more or less on moral values prevailing in the society we belong to. With the above observations I feel persuaded to release the petitioner on bail. He shall be released from the custody provided he furnishes a bail bond worth Rs. One Lac and personal bond in the like amount to the satisfaction of any Magistrate 1st Class at Rawalakot, Poonch. H.B.T./41‑Sh.C. (AJ&K) Bail granted.