Thursday, 12 September 2013

Un-explained delay favors the accused

PLJ 2011 Cr.C. (Lahore) 269
Present: Sh. Ahmad Farooq, J.
MUHAMMAD HANIF--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 6923-B of 2010, decided on 4.8.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 365--Bail, grant of--Un-explained delay--Allegation of--Petitioner alongwith co-accused abducted complainant committing illicit intercourse--Litigation regarding genuineness of "Nikah Nama"--Benefit of doubt was given to accused--Petitioner had on record a copy of NikahNama--Complainant filed application u/S. 22-A and 22-B Cr.P.C. not only complainant presence had been marked but thumb impression was affixed--Secretary union council had issued certificate on complainant marriage and petitioner had obtained an ex-parte decree restitution of conjugal right against complainant but complainant had instituted a suit for jactitation of marriage against present petitioner.         [P. 271] A
Mr. Nasir Ahmad Awan, Advocate with Petitioner.
Mr. Muhammad Iqbal Chaudhry, DPG, for State.
Ch. Arshad Iqbal Bhullar, Advocate, with Complainant.
Date of hearing: 4.8.2010.
Order
The petitioner/Muhammad Hanif seeks pre-arrest bail in a case arising out of FIR No. 298/2010, dated 1.5.2010, registered in Police Station Arifwala, District PakpattanSharif, under Section 365-B PPC.
2.  Succinctly, the allegation against the present petitioner leveled by the complainant/MstZubaida Bibi, in the FIR, is that on 4.3.2010, at about 10.30 a.m., the said petitioner alongwith the co-accused abducted her for the purpose of committing illicit intercourse. The accused are also alleged to have stolen Rs 20,000/- and gold ornaments weighing 5 tolas. The complainant further alleged that the present petitioner had been committing rape with her and got her thumb impression on blank papers.
3.  Learned counsel for the petitioner submitted that there is a delay of about two months in the registration of the case as the occurrence took place on 4.3.2010 and the FIR was lodged on 1.5.2010. He further submitted that the complainant, who is not only a maternal cousin of the petitioner but also, being major and sui-juris, contracted valid marriage with the petitioner according to Sharia Muhammadi, out of her free will, vide "Nikah Nama" dated 4.3.2010. He maintained that MstZubaidaBibi/complainant alongwith the petitioner filed an application under Sections 22-A. and 22-B Cr.P.C. in the Sessions Court, Lahore, wherein she appeared alongwith the petitioner and put her thumb impression on the order sheet dated 10.3.2010. He pointed out that the petitioner has also obtained an ex-parte decree for restitution of conjugal rights against the present complainant on 11.6.2010. He argued that the allegation of the commission of the alleged offence against the present petitioner is totally false and the petitioner has been implicated by the complainant with mala fide intentions under the undue pressure of her parents.
4.  Conversely, the learned counsel for the complainant as well as the learned DPG opposed the instant petition on the ground that the victim has herself lodged the instant FIR and she has also fully supported her allegation in the statement recorded under Section 164 Cr.P.C. They further submitted that the complainant/MstZubaidaBibi has filed a suit for jactitation of marriage. Lastly, they argued that the punishment of the offences, alleged to have been committed by the present petitioner, falls within the prohibitory clause of Section 497(1) Cr.P.C.
5.  Argument heard. Record perused.
6.  MstZubaida Bibi/complainant was allegedly abducted on 4.3.2010, whereas the petitioner has placed on record a copy of "Nikah Nama", which shows that the Nikahof said MstZubaida Bibi was solemnized with the petitioner on 4.3.2010. It is strange that neither the parents nor any relative of MstZubaida Bibi lodged an FIR immediately after the occurrence on 4.3.2010 and the FIR was lodged by MstZubaida Bibi herself on 1.5.2010, after her alleged escape from the custody of the petitioner. MstZubaida Bibi/complainant alongwith Muhammad Hanif/present petitioner filed an application under Sections 22-A and 22-B Cr.P.C. against SHO, Police Station, Purani Anarkali, Lahore, wherein not only her presence has been marked but also her thumb impression is affixed on the order sheet dated 10.3.2010 of learned Additional Sessions Judge, Lahore.
7.  Furthermore, Secretary, Union Council, Guldusht Colony (6), District Lahore, has issued a certificate on 28.5.2010 regarding the marriage of MstZubaida Bibi with Muhammad Hanif on 4.3.2010. Additionally, not only the present petitioner has obtained an ex-parte decree for restitution of conjugal rights against MstZubaidaBibi/complainant but also the said MstZubaida Bibi has instituted a suit for jactitation of marriage against the present petitioner. The petitioner and the alleged victim are closely related to each other. In these circumstances, particularly, the litigation regarding genuineness of "Nikah Nama" dated 4.3.2010, the commission of the alleged offences by the present petitioner is doubtful. Needless to mention here that the benefit of doubt is to be given to an accused even at bail stage. Hence, the instant pre-arrest bail petition, filed by Muhammad Hanif, is accepted and interim bail already granted to him is confirmed, subject to submission of fresh bail bonds in the sum of Rs. 1,00,000/-, with one surety in the like amount to the satisfaction of learned trial Court.
 (S.L.)  Bail granted.

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