Shaban Ali vs State

2011 Y L R 670

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHABAN ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1382 of 2010, decided on 15th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage, etc.---Bail, grant of---Further inquiry---Alleged abductee not only denied her abduction by the accused but also claimed to have contracted Nikah with him of her free- will---Categorical statement of the alleged abductee called for further inquiry into the guilt of the accused---Bail was granted.

Aamir v. The State and another 2010 PCr. LJ 961; Muhammad Akhtar v. The State and another 2010 PCr.LJ 373; Muhammad Zahoor Ahmad v. The State 2010 PCr.LJ 113 and Muhammad Munawar v. The State 2009 PCr.LJ 195 ref.

Rabnawaz v. Gul Adam Khan 2010 PCr.LJ 905 rel.

Ashab Ali Bangesh for Petitioner.

Naveed Akhtar, A.A.-G. for the State.

Shahid Qayyum Khattak for the Complainant.

Date of hearing: 12th November, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Through this bail application, the petitioner herein, has asked for his release on bail in case F.I.R. No.88 dated 30-5-2010 Police Station Sabir Abad, District Karak, registered under section 365-B, P.P.C. wherein the accused petitioner was .refused concession of bail by the forums below.

2.A report was made by one Noor Qalam Khan on 30-5-2010 that his daughter-in-law Asmana Bibi wife of Rizwanullah was abducted by Sher Ali son of Sangeen Khan and Shaban Ali son of Sher Ali Khan while she had gone to fetch water for drinking purposes. A case under the above section of law was registered against both the accused. The other co-accused Sher Ali was released on bail by this Court on 20-8-2010 as there was no material available on the file connecting him for the commission of offence.

3.The learned counsel for the petitioner submitted that the accused petitioner being innocent has falsely been implicated in the case as the lady was never abducted by the petitioner and she during investigation has recorded her statement before police as well as she also recorded her statement before the Judicial Magistrate under section 164, Cr.P.C. that she was never abducted by the accused petitioner and she being his fiancee, she of her own went from the house of her father and contracted a Nikah with accused petitioner. She also submitted an affidavit dated 12- 6-2010 wherein, she once again has affirmed the assertions made by her in a statement before Judicial Magistrate. While placing reliance on case-law Aamir v. The State and another (2010 PCr.LJ 96), Muhammad Akhtar v. The State and another (2010 PCr.LJ 373), Muhammad Zahoor Ahmad v. The State (2010 PCr.LJ 113), Muhammad Munawar v. The State (2009 PCr.LJ 195) learned counsel for the petitioner submitted that the case of the accused petitioner in the given circumstances is that of further inquiry and he is entitled to be released on bail.

4.As against that, the learned A.A.-G, assisted by the learned counsel for the complainant submitted that the Nikah with the petitioner is a concocted and fabricated one as she was already given in the Nikah of one Rizwanullah and her marriage also took place on 1-12-2009 by referring to the Nikahnama and Rukhsati certificate in this regard and submitted that the accused petitioner being directly charged is not entitled to the concession of bail.

5.Learned counsel for the parties as well as learned A.A.-G for the State were heard and record of the case was perused.

6.No doubt, that a photocopy of Nikahanama and certificate of marriage by the Nikah Registrar is' available on the file which is dated 1-12-2009 prior in time to the second Nikah dated 29-5- 2010 (which has also been categorically accepted and admitted by the lady). She not only denied her previous Nikah and Marriage but she recorded her statement before the police and the Judicial Magistrate wherein she has categorically admitted the fact that she was not abducted by the petitioner. Besides, the lady has also filed a suit for jactitation of marriage against said Rizwanullah and has also challenged her previous alleged Nikah with Rizwanullah. The question for consideration before this Court is not the two disputed marriage contracts of the lady but the

involvement of the accused petitioner for the offence he is charged with. The role of the lady in such like cases is very much important. If the role of the lady in the light of her categoric statement, referred above, is seen then the involvement of the accused petitioner becomes a question mark. Such a question could only be resolved by the trial Court after recording of the evidence in the case.

7.All the above circumstances and facts would make it a case of further inquiry and probe as to whether the version given in the F.I.R. by the complainant was correct and true in presence of categoric statement and affidavit of the lady wherein she had claimed her to be sui juris and has denied her abduction and performed her Nikah with the accused petitioner by exercising her free- will. In the given circumstances, this Court without discussing the merits of the case comes to an irresistible conclusion that the case of the accused petitioner falls under subsection (2) of section 497, Cr.P.C. which entitles the accused petitioner for grant of bail. In this regard, reliance could also be placed on a case of Rabnawaz v. Gul Adam Khan reported in 2010 PCr.LJ 905.

8.Hence, for the reasons above, instant bail petition is allowed, the accused petitioner is directed to be released on bail subject to furnishing bail bonds to the tune of Rs.500,000 (Rupees five lacs) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistate/ Magistrate on duty. The sureties shall be reliable and men .of means.

A.R.K./384/P Bail granted.