Habib Ullah Vs The State

IN THE PESHAWAR HIGH COURT

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) Cr.M (B.A) No. 521-M/2025

Habib Ullah ............................ Petitioner. v/s The State and another ............ Respondents.

Present: Muhammad Ikram Khan, ASC for the petitioner.

Mr. Kamal Khan, Asstt: A.G for the State.

Mr. Saeed Ullah, AHC for the complainant/respondent.

Date of hearing: 26.09.2025

JUDGMENT

SALAH-UD-DIN, J.- Instant bail application u/s.497, Cr.P.C., has been filed by one Habib Ullah, the petitioner, for seeking his release via grant of post arrest bail in criminal case FIR No. 209 dated 01.07.2020 u/s.365-B of the Pakistan Penal Code, 1860, (“PPC”), registered at the Police Station Gandigar, District Dir Upper.

2.According to the contents of the FIR registered on the strength of Naqal Mad No. 19 dated 07.06.2020, the complainant, namely, Meraj-ud-Din has charged the present Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

accused/petitioner for the abduction of his wife, namely, Mst. Robina Bibi, by enticing her for the purpose of illegal marriage.

3.Arguments of learned counsel for the parties as well as learned Astt: A.G appearing on behalf of the State were heard in considerable detail and record gone through with their able assistance.

4.Perusal of record would reflect that the initial report of the complainant was lodged vide Mad No. 19 dated 07.06.2020 against unknown accused. Later on, she was traced by the local police via Call Data Record (CDR) of her cellular phone and she was recovered on 01.07.2020, whereafter, her statement u/s.164, Cr.P.C was recorded by the concerned Judicial Magistrate and on the basis of which, the accused/ petitioner was charged for the commission of alleged offence.

5.It is apparent on the face of record that initially, the complainant/respondent has reported the alleged event to the local police vide Made No.19, dated 07.06.2020, against Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

unknown accused. After the recovery of abductee, Mst. Rubina Bibi, recorded her statement u/s.164, Cr.P.C, wherein, she didn’t charge the accused/petitioner for her abduction and only alleged her enticement against him.

Besides, there exists no oral transcription attributable to the accused in respect of the CDR.

6.It may also be noted that while granting bail to an accused person the evidence which is likely to be produced by the prosecution may be considered as a ground for bail and as in this case the abductee being the sole and star witness with the prosecution has prima facie exonerated the present petitioner from the commission of offence in her duly recorded statement under section 164 Cr.P.C before the concerned judicial Magistrate, therefore, such aspect of the case too goes in favour of the present petitioner.

7.The record also shows that though the prosecution has leveled section 365-B PPC, however, the essential ingredients for Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

constituting such an offence i.e. kidnapping or inducing a woman for the purpose of forceful marriage are not available on the face of record, therefore, the applicability of section 365-B PPC or otherwise shall be determined by the learned trial Court after recording of pro and contra evidence and thus for the time being the case of the accused/petitioner is one of further inquiry. In Syed Amanullah Shah’s case, the Hon’ble apex Court has held that ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/ probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused.1

8.In Resham Khan’s case, the

Hon’ble Apex Court has also extended the benefit of doubt to an accused/person even at bail stage by observing that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at 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 PLD 1996 Supreme Court 241, Syed Amanullah Shah v/s The State & another.

Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

bail or not.2 Similarly, in Ali Raza’s case, the Hon’ble Apex Court has reiterated the aforementioned rational of law by observing that benefit of doubt could be extended to an accused person even at bail stage if the facts of the case so warrant. 3

9.In the given facts and circumstances the accused/petitioner has made out a case for the grant of bail. Accordingly, this bail application is allowed and the accused/petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs. 100,000/- (rupees one hundred thousand) with two sureties each in the like amount to the satisfaction of learned Judicial Magistrate/MOD, who shall ensure that the sureties are local, reliable and men of means.

10.The above observations are purely tentative in nature and should in no way prejudice an independent mind of learned trial Court during the course of trial.

11.These are the reasons of my short order of even date.

ANNOUNCED Sd/- Dt: 26.09.2025 JUDGE

2021 SCMR 2011, Resham Khan & another v/s The State & another .

2022 SCMR 1245, Ali Raza v/s The State & others.

Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din

Bakht Sher Ali/SSS (S.B.) Hon'ble Mr. Justice Salah-ud-Din