2026 PLP 729 (MLD)

Muhammad tariq nadeem, J.

By virtue of instant petition filed under Section 498, Cr.P.C., petitioner Awon Muhammad has sought pre-arrest bail in case FIR No.874 dated 17-08-2025, in respect of an offence under Section 376, P.P.C, registered at Police Station, City, Wazirabad.

2. Succinctly, the facts of the case are that the petitioner contracted marriage with Sana complainant/victim on 19.04.2025 and started living with her. Few months later, the petitioner started quarrel with the complainant and compelled her to allow him to commit sodomy with her. Thereafter the petitioner on various occasions committed unnatural act with her (complainant) without her consent. It is mentioned in the FIR that the petitioner made objectionable pictures and videos of the complainant. In spite of all, the complainant forbade the petitioner but he (petitioner) gave a deaf ear and threatened that if she would tell anyone then he will upload the objectionable pictures and videos on the social media. Hence, this case.

3. Learned counsel for the petitioner contends that the FIR has been lodged due to matrimonial discord; that the parties were living together as husband and wife; that the allegation of unnatural act in a subsisting marital relationship is inherently doubtful in the circumstances of the present case; that the petitioner has cooperated with the investigation, has not misused the concession of interim relief, and that his arrest appears to be motivated by mala fide on account of ongoing domestic disputes.

4. The learned Deputy Prosecutor General assisted by counsel for the complainant, opposed the petition, arguing that the allegation falls within the ambit of Section 376, P.P.C, which is a serious charge.

5. I have mused over the arguments advanced by learned counsel for the petitioner as well as learned Law Officer assisted by learned counsel for the complainant assiduously and perused the record minutely.

6. It is true that according to Shariah sodomy with wife is prohibited. According to Jami at-Tirmidhi Hadith No.1165 while describing the Shariah remarked in so many words:- Similarly, in another Hadith of Sunan ibn Majah (Volume-I) has given almost same narration about the sodomy in following terms:-

7. Although a very heinous allegation has been levelled by the complainant against her husband/petitioner but before discussing the merits of the instant bail application, this Court is mindful of the fact that the pre-arrest bail is an extraordinary relief to be granted only in extraordinary situation to protect innocent persons against victimization through abuse of process of law for ulterior motives and bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified in the statute, not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police to cause irreparable humiliation to him and to disgrace as well as dishonour him.

8. Coming to the merits of the case, the occurrence allegedly took place lastly in the first week of June 2025 and FIR was lodged on 17.08.2025, in this way, there is a considerable delay in reporting the matter to the police, meaning thereby, the crime report has been got registered after due deliberation and consultation. The Hon ble Supreme Court of Pakistan in the case reported as Khair Muhammad and another v. The State through PG Punjab and another (2021 SCMR 130) while taking notice of inordinate delay and other grounds confirmed pre-arrest bail of the accused.

9. The FIR states in its opening lines that the complainant s relationship with the petitioner, her husband, became strained soon after the marriage and that she was subjected to harassment and torture. It is noteworthy that despite these alleged difficulties, complainant did not raise the issue before any competent forum at any earlier stage. This omission indicates that she may have harboured a pre-existing grievance against the petitioner. In these circumstances, the possibility cannot be ruled out that the petitioner has been falsely implicated in the present case as a means to exert pressure in the matrimonial dispute. A reference in this context may be made to the case of Adeel Manzoo v. The State and others (2023 SCMR 967).

10. As per narration of the FIR the complainant emphatically alleged that she had repeatedly been subjected to carnal intercourse by her husband, the petitioner, but her medico-legal report badly negated her version. The allegation of committing unnatural offence by the accused/petitioner could only be corroborated by the medical evidence, which is in direct conflict thereto and reduces veracity thereof almost to a nonentity. Moreover, DNA report in this respect is also negative. It is settled law that the benefit of doubt can be extended to the accused even while deciding pre-arrest bail application. Reliance is place on the case-law reported as Fahad Hussain and another v. The State through Prosecutor General Sindh (2023 SCMR 364) wherein it has been held as under:-

6. The perception and discernment of the expression "further inquiry" is a question which must have some nexus with the result of the case and it also pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. The raison d'etre of setting the law into motion in criminal cases is to make an accused face the trial and not to punish an under trial prisoner or let him rot behind the bars. It is a well settled principle of the administration of justice in criminal law that every accused is innocent until his guilt is proved and this benefit of doubt can be extended to the accused even at the bail stage, if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not which is not a static law but growing all the time, moulding itself according to the exigencies of the time. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused person(s). Reasonable grounds are those which may appeal to a reasonable judicial mind, as opposed to merely capricious, irrational, concocted and/or illusory grounds. However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in a vacuum.

11. With regard to the contention of learned Law Officer assisted by learned counsel for the complainant that the petitioner has failed to point out any mala fide or ulterior motive on the part of complainant or the police, which is sine qua non for confirmation of pre-arrest bail, is concerned, it is noteworthy that the element of mala fide is floating on the surface of record. More so, it has been held in pronouncements of Hon ble Supreme Court of Pakistan that factum of mala fide can also be inferred and deduced from the facts and circumstances of the case. I fortify my view from the dictum laid down in case titled as Khalil Ahmed Soomro v. The State (PLD 2017 SC 730), wherein the following principle has been enunciated:- Although for grant of pre-arrest bail one of the preconditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide. Likewise in the case of Shahzada Qaiser Arfat alias Qaiser v. The State and another (PLD 2021 SC 708), the apex Court of the country was pleased to observe as under:- .The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the Investigating Officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10-A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offence and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him are the circumstances which by themselves indicate the mala fide on part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part .

12. Although it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are altogether different but in the recent case laws of apex Court of the country titled as Abdul Rehman v. The State and others (2023 SCMR 2081), Saad Zia v. The State and others (2023 SCMR 1898) and Muhammad Aziz alias Mana v. The State and others (2023 SCMR 1773), it has been held that while deciding pre-arrest bail even the merits of the case can be touched upon. The investigation to the extent of the petitioner is complete and there is no allegation that he has misused the concession of ad interim pre-capture bail already granted to him.

13. The epitome of above discussion is that the petitioner has succeeded in making out the case for the confirmation of pre-arrest bail, hence, this petition is allowed and ad interim pre-arrest bail already granted to the petitioner vide order dated 18.11.2025 is confirmed subject to his furnishing of fresh bail bonds in the sum of Rs.500,000/- (Rupees five hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial court.

14. Needless to mention that observations made in the above order are tentative in nature and shall not influence the learned trial court in any manner. MH/A-16/L Bail confirmed.