Muhammad Ajmal vs State etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR

BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Cr. Misc. No. 4516-B of 2021

Muhammad Ajmal versus The State and another S.No.of Date of Order with signature of judge, and that of parties or order/ order/ counsel, where necessary.

Proceedings. Proceedings

03.01.2022 Jam Muhammad Nasir Fayyaz, Advocate for the petitioner Mr. Javed Iqbal Bhayaa, ADPP with Munwar ASI.

Mr. Hussain Ahmad Madni, Advocate for the complainant.

The petitioner namely Muhammad Ajmal seeks post- arrest bail in case FIR No. 154/2021 dated 24.07.2021 for offences under sections 496-A, 376, 420, 468 & 471 PPC registered at Police Station, Sehja, District Rahim Yar Khan.

2.Tersely the allegations levelled in the F.I.R are that on 28.05.2021, petitioner alongwith his co-accused forcibly abducted Mst. Sumaira Bibi, sister of the complainant in a white colour car and took her to some unknown place where he committed rape with her, thereafter, petitioner obtained thumb impressions of abductee/victim on some papers and prepared a forged Nikah Nama. Hence this FIR.

3.It is contended by the learned counsel for the petitioner that he is totally innocent in this case and no offence is committed by him. Further submits that Mst. Sumaira Bibi the alleged abductee/victim of this case has contracted marriage with the petitioner with her own free will and consent on 01.06.2021. Further argued that the alleged abductee/victim has made contradictory statements on different occasions and she herself has filed a suit for jactitation of marriage against the petitioner as well as

petitioner has also filed a suit for restitution of conjugal rights against alleged abductee/victim. It is also submitted by learned counsel that factum of nikah will be determined by the learned Judge Family Court and the case of the petitioner definitely fall within the remit of further inquiry as stipulated in subsection (2) of section 497 Cr.P.C.

4.Contrarily, learned ADPP assisted by learned counsel for the complainant has vociferously argued that the petitioner has abducted and committed rape with Mst. Sumaira Bibi, that the offence with which the petitioner has been charged is an offence against society, for the reason, he is not entitled for the concession of bail after arrest.

5.Tripartite arguments heard and record perused.

6.After going through the narration of FIR and the evidentiary material collected by the police and presented before this Court, it divulges that there is a delay of 1 month and 26 days, in registration of FIR and no plausible exegesis has been described by the prosecution in this regard, meaning thereby, the FIR has been got registered after due deliberation and consultation.

7.After scanning of record and going through the attested copies of documents appended with this petition, it transpired that the alleged abductee/victim filed a petition under Sections 22-A/22-B Cr.P.C in the Court of learned Ex- Officio Justice of Peace at Khanpur wherein she stated that she has contracted marriage with Muhammad Ajmal son of Ghulam Musatafa (petitioner) on 01.06.2021 with her own free will and consent. She had also appeared before the Court in support of her petition on 24.06.2021. Moreso, she also filed a private complaint under Sections 506,148 & 149 PPC in the Court of learned Area Magistrate, Liaqatpur against her father namely Haq Nawaz and 3 others wherein she also reiterated the supra mentioned facts. Learned counsel for the

petitioner has also appended with petition a certified copy of divorce deed as Annexure-C which manifests that Muhammad Faisal, previous husband of the victim/abductee divorced her on 22.07.2017; similarly, learned counsel for the petitioner has also annexed a certified copy of notice under section 7 of The Muslim Family Laws Ordinance, 1961 alongwith bail application as which depicts that Muhammad Faisal, previous husband of alleged abductee/victim namely Mst. Sumaira Bibi divorced her on 22.07.2017 and approached the concerned Secretary Union Council for effecting divorce. Although, alleged abductee/victim namely Mst Sumaira Bibi has got recorded statement under section 161 Cr.P.C against the petitioner that she was abducted and raped by the petitioner but the divergent statements of the abductee/victim prima facie make this case as doubtful. Reference can be made to the case laws titled as “Muhammad Shahbaz vs. The State and another (2018 P Cr.L J 1025) & “Fida Hussain and another vs. Basharat Hussain and 2 others” (2015 MLD 1802).

8.Another intriguing aspect of this case is that medical evidence do not support the prosecution version because no mark of violence was observed by the Lady Doctor on the body of the abductee/victim Mst. Sumaira Bibi. All the supra mentioned facts make the case of the petitioner as one of further inquiry as contemplated under section 497 (2) Cr.P.C. Reliance is placed upon the following case laws titled as “Haibat Khan Vs. The State and others” (2016 SCMR 2176) and “Muhammad Tanvir vs. The State and others”

(2017 SCMR 366).

I have also observed that after returning her home, Mst. Sumaira Bibi got recorded her statement under Section 161 Cr.P.C on the asking of her parents against the petitioner and levelled allegation of abduction and rape against him and also filed a suit for jactitation of marriage against the

petitioner, which is also pending for adjudication. I am of the considered view that it has been well settled by now that factum of Nikah will be determined by the learned Judge Family Court, seized with the supra mentioned matters. I fortify my view from the dictum laid down in case titled as “Muhammad Azam v. Muhammad Iqbal & others” (PLJ 1984 SC 192) wherein the Hon’ble Supreme Court of Pakistan has held as under:-

“ The foregoing discussion and question Nos. 1 to 3 regarding effect of the decision of the Family Court regarding the plea of Nikah on the same plea before the criminal trial Court, would show that the view of the Federal Shariat Court in this behalf expressed in the case of Din Muhammad mentioned in Question No.6 is, with respect, not correct. The judgment of the Family Court, in the circumstances discussed already would be binding in all relevant respects. Moreover it will not be correct to say that the statement made by a party in the case before the Family Court will be relevant only for purpose of contradiction under section 145, Evidence Act. It will also be a piece of evidence before the criminal trial Court regarding conduct and as to what was the plea in that Court. It was so held, as already noticed, in the case of Malik Din. On the stay of proceedings on the criminal side, pending decision by the Family Court the approach of the Federal Shariat Court was not correct. When it is known that the decision of that forum original/appeal, will have a determining effect on the outcome of the criminal trial, it would be in the interest of justice and fairness to stay the latter proceeding or the appeal therefrom. Question No.6 is answered accordingly.”

9.The petitioner is behind the bars since his arrest and is no more required for further investigation and concession of bail cannot be withheld as punishment. Reliance is placed upon the case titled as “Husnain Mustafa Vs. The State”

(2019 SCMR 1914).

10.As a corollary of above mentioned discussion, this petition is accepted and the petitioner Muhammad Ajmal is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court.

11.Before parting with this order, I deem it necessary to hold that the observations made hereinabove are tentative in

nature and shall have no bearing on any of the other proceeding connected to this case.

(Muhammad Tariq Nadeem) Judge Approved for Reporting

Judge

M.Shahzad/*