Syed Imtiaz Hussain Shah Vs The State

I

PESHATYAR HIGH COURT ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

Cr. M Baiil No.291-A/2020.

Date of hearing 20.04.2020.

Petitioner/s (Syed Imtiaz Hussain Shah) by Mr. Amjad Khan, Advocate.

Respondent/s (State & complainant) by Sardar Muhammad Asif, Assistant AG.

AHMAD ALI. J Through this petition, accused/petitioner seeks his release on bail, who is charged in case FIR No. 45 dated:

09.01.2020 under section 37 6, 419, 420, 466, 468, 471,109/34 registered at Police Station, Cantt, District, Abbottabad.

2.As two other co-accused namelY Muhammad Aslam and Muhammad Ashraf # have also moved their bail petition bearing No. 295-412020 titled: Muhammad Aslam & another Vs. State & another, therefore, same shall also be decided through this single order.

3.Brief but relevant facts as narrated in the first information report are that complainant Mst. Gul Bibi submitted an

application to the local police by stating that she was in Dar-ul-Aman since two years. As she wanted to marry with one Wafaq Ahmed, so with the consent of her parents, she asked the Incharge Dar-ul-Aman in this respect. As the said Wafaq Ahmed was nephew of Arif, who is the clerk of Social Welfare Department. On 20th April 2020, she was discharged from Dar-ul-Aman after furnishing personal surety bond and then went with the said clerk namely Arif to his house, where Nikah was performed with Wafaq Ahmed on 29th April, 2020. After marriage her husband went to Rawalpindi and never retumed to home. That she was residing in the house of said Arif in his house in a village, where she came into s/ knowledge that the said Wafaq Ahmed was not of sound mind, thus she decided to get divorce and said Arif ensured her that he would marry her somewhere else, therefore, she obtained divorce from Wafaq Ahmed, but said tuif did not fulfil his commitment and also not sent her to Dar'ul-Aman and then one day in the absence of his wife, he

raped her, due to which she got pregnant.

That the said Arif threatened her for dire consequences, thereafter, she came lo Dar- ul-Aman, being safe there, she requested for legal proceedings against the accused. In the meanwhile, complainant had given birth a child, she also stated that the said child be handed over to his real father namely Arif.

Hence, the instant FIR.

4.Arguments of learned counsel for parties as well as learned AG heard and record available gone through with their valuable assistance.

5.Meticulous sifting of record in the light of arguments reflects that the present accused/petitioners are not charged by the v complainant in the first information report.

In the whole story, the complainant never uttered a single word regarding involvement of the present accused,/petitioners. The main accused nominated in the present case is one Arif.

6.On record there is copy of Nikahnama showing therein the said Arif as bridegroom, while the complainant has been shown as

bride. The accused/petitioner Syed Imtiaz Hussain Shah Nikah Khwan is shown to be Nikahkhawan of the said alleged Nikah, while the other accused./petitioners namely Muhammad Aslam and Muhammad Ashraf are mentioned as witnesses of the said Nikha, therefore, prima facie section 376 PPC is not applicable to the case ofpresent accused/petitioners, while the punishment provided for remaining sections of law i.e 419, 420, 466,471 PPC does not fall within the prohibitory clause of section 497 Cr.

P.C. The validity of said Nikahnama would be seen at the time of trial as at the bail stage only tentative assessment of record is required and deeper appreciation is not # permissible.

7.In Zsler-Is.ba!,scase (2009 SCMR 1488), a larger Bench of the august Apex Court has explicitly expressed the principles for considering the grant of bail, where offences do not fall within the prohibitory clause of section 497 Cr.P.C. The said principles have consistently been followed by the Honourable Supreme Court, as it has

been held in Riaz Jafar Natiq's case (2011 SCMR 1708) that:

"Thus keeping in view the law laid down in the case of Zafar Iqbal v, Muhammad Anwat and otherc (2009 SCMR 1488) ordaining thnt where a case falls wilhin non- prohibitory clause lhe concession of granting bail masl be favourably considercd and should only be declined in exceptional cases. l[/e do not Jind this to be a case where it should be refused as an exception, Thus, this petition is converted into an appeal and the same is allowed and, resullan y, the peliliorrer is admitted to bail subject to furnishing bail bond in the sum of Rs, 1,00,000 (Rupees one hundred thousand only) with two Eurelies each in the like emount lo the satisfaction of lhe learned trial Courl,"

Similarly, the august Apex Court, 1n unequivocal terms held in u!!@!!

Tanveer's case (PLD 2017 SC 733) that:

"Once this Court has held in calegorical lenns that grunt of bail in offences not falling wilhin the prohibitory limb of section 497, Cr.P,C, shull be a rule and rcfusal shall be an exception then, lhe Courts of the country shouldlollow this principle in ils lettet and spitit because principles of law enunciated b! lhis Cou are constitutionally bind.ing on all Courts throughoal the coantr! inctading the Special Ttibunals and Special Cou*.

Although in some special lates there are speciJic provisions, limiting lhe scope of secrion 497, Cr.P.C. however, this Coutt in manY rcpofled cases has laid down binding principles that lhe provisions of section 497, Cr,P.C, shall not be ignored even fut those caset and the guiding provisions/principles given therein shall always be kept in mind while consfulering the grant or rcfustl of

bail.

In this regard the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the famous case of Khan Asfan$tar llali and olhers v, Federation of Pakistan (PLD 2001 SC 607) are much rclevan| wherc principle of section 497, Cr,P,C. was held to be applicable even to such cases of course subjecl ,o slight limilation.

We expecl the Courts below lo adhere to these binding principles in fulure and not to act mechanically in the mattq of granting or rufusal of bail because liberty of citizen is involved in such matters, thereforc, same shoald not be decided in vacuum and without proper judicial approach."

8.Moreover, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Govemment agencies to the sureties, who on fumishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on # case reported in 2008 SCMR 80 7 "Haii Muhamm ad Nazir Vs. Stale".

9.The observations made hereinabove are tentative in nature for the disposal of bail petition and not intended to influence the mind of trial Court, which is free to appraise the evidence strictly in accordance with law and merits of the case. In this regard the

august Supreme Court of Pakistan in Shuaib Mehmood Butt Vs. Iftikh ar-ul-Haq (1996 SCMR 1845) has rendered clear guidance, which is to the effect rhat:-

"However we would like to point out in no celtain terms that the obseryations made by the High Court in the orders granting bail and by us in this order are confned to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the low at the time of disposal of the case, which of course, needless to say, is the function of the trial Court".

10.In view of the above stated facts and circumstances the case, this Court reached to the conclusion that the accused/petitioners have made out their case arguable for the purpose ofbail, therefore, this and connected bail petition are allowed. They be released on bail, provided they furnish bail bonds in the sum of Rs. 2,00,000/- (two lacs) with two sureties, each (in respect of each accused) in the like amount to the satisfaction to leamed Ilaqa Judicial/Duty Magistrate, who shall ensure that the sureties are local reliable and men of means.

Announced.

Tahh P/Sectelary.

V

JUDGE