2011 M L D 1764
[Quetta]
Before Muhammad Hashim Khan Kakar, J
GHULAM RASOOL ---Applicant
Versus
THE STATE ---Respondent
Criminal Bail No.(S) 36 of 2011, decided on 29th July, 2011.
Criminal Procedure Code (V of 1898) ---
----S. 498 ---Penal Code (XLV of 1860), Ss.365, 147 & 14 9---Abduction ---Pre-arrest bail,
grant of ---Affidavit of alleged abductee annexed with bail application, had clearly shown
that alleged abductee had entered into Nikah with accused in consonance with the right
guaranteed under the Islamic Law ---Matter, req uiring consideration, pertained to the
allegations, which were levelled against accused, were ulterior motives, coupled with the
loss, sustained to his honour, dignity and prestige ---Question of mala fides was borne out
from the record; and sufficient mate rial was available to come to the conclusion that the
report had been lodged to victimize and harass accused ---In case of refusal to grant pre -
arrest bail to accused, he would suffer humiliation, his dignity would be lowered in the
general public ---Superio r courts could entertain pre -arrest bail and grant relief to accused
in appropriate cases, where accused established that he was prevented from approaching
the lower court concerned ---Even otherwise, when it appeared that accused had not
committed the offe nce of which he was being accused, bail should not be refused or
withheld, merely on technical grounds ---Accused was admitted on pre -arrest bail, in
circumstances.
Malik Mukhtiar Ahmed Awan v. The State 1991 SCMR 322 rel.
Ali Hassan Bugti for Applicant.
Abdul Sattar Durrani, D.P. -G. for Respondent.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---By this order, I proposed to
dispose of Criminal Bail before Arrest Application No.36 of 2011, moved by applicant
Ghulam Rasool son of Abdul Sattar. The applicant has resorted to file pre -arrest bail
under section 498 of the Cr.P.C. in case Crime No.34 of 2011 registered under section
365 read with sections 147 and 149 of the P.P.C. at Polite Station Sohbat Pur District
Jaffarabad. He was admitted on interim pre -arrest bail by this court, which has come upon
for hearing for confirmation or otherwise.
The facts for the disposal of the application are that complainant Majid Ali son of
Mir Hassan Khosa resident of Goth Mir Hassan Khosa, lodged report on 21st June, 2011,
stating therein that his daughter, namely, Ghazala Bibi aged about 21 years was
performing her duties with Health Program as EPI, whereas in this connection a Suzuki
Van was hired by the management of the said project for the pick and drop of the
employees. On 19 -6-2011, the applicant, being driver of the said Suzuki, came to the
house of complainant for taking Mst. Ghazala. He has further alleged that Mst. Ghazala
was accompanied by his minor son and daughter, namely, Abida and Muhammad Alam.
When the said Ghazala did not return home, the instant F.I.R. was lodged with the
allegation of abduction.
Mr. Ali Hassan Bugti, learned counsel appearing for the applicant, has contended
that there is sufficient evidence on record, which suggests that allegations leve lled by the
prosecution are malicious, as the alleged abductee Mst. Ghazala has contracted Nikah
with the applicant in consonance with Muslim Hanafi rites. The complainant has lodged
F.I.R. on the basis of conjectures and surmises, as the abductee has pers onally appeared
before this court, testified the contents of the affidavit filed by her to the effect that she
was not minor, entered into contract of marriage out of her free will, without coercion and
pressure. On the point of first recourse available to the applicant to appear before District
and Sessions Judge Nasirabad for relief, the learned counsel appearing for the applicant
has contended that the police was bent upon to arrest the applicant on one or the other
pretext and further contended that due to fear of life, the applicant cannot approach the
concerned court, as the said court is situated at the native village of the complainant. He
further contended that keeping in view the peculiar circumstances of the case, this court
could directly enterta in pre -arrest bail.
Mr. Abdul Sattar, learned Deputy Prosecutor -General, did not oppose the
application and contended that the applicant should be directed to associate with the
investigating agency.
I have carefully considered the contentions as advance d and also perused the
record. Before touching merits of the case, it would be advantageous to reproduce the
relevant portion of the affidavit of Mst. Ghazala, annexed with the instant bail
application, which speaks as under: --
"that I am Virgin lady, Mus lim adult, age is about 21 and am well and sufficiently
in a position to think for my future betterment without any coercion, interruption
of any one of any kind of whatsoever in nature. That I want to merry with one Mr.
Ghulam Rasool son of Abdul Sattar, Muslim adult, resident of Faqir Goth Gadap
Town Scheme -33, Karachi Super Highway, who has serious love and affection for
me and he is ready to accept me, therefore, serious love affection and attachment
have been developed in my mind in his favour resultin g thereof, I have decided to
merry with him on my choice, by exercising the rights of free will."
From bare perusal of the above contents of the affidavit, it is crystal clear that the
alleged abductee Mst. Ghazala had entered into Nikah with the applican t in consonance
with the right guaranteed under the Islamic Law. The matter, requiring consideration,
pertains to the allegations, which are levelled against the applicant, are ulterior motives,
coupled with the loss, sustained to his honour, dignity and p restige. The question of mala
fides appears to be borne out from the record and sufficient material is available to come
to the conclusion that the report has been lodged to victimize and harass the applicant. In
such view of the matter, I am satisfied tha t in case of refusal to grant pre -arrest bail to the
applicant, he would suffer humiliation, his dignity would be lowered in the general
public.
It would be relevant to mention here that it is by now established that Superior
Courts can entertain pre -arrest bail and grant relief to the accused in appropriate cases,
where accused, inter alia, establish that he was prevented from approaching the lower
court concerned. Even otherwise, when it appears that the accused has not committed the
offence of which he was being accused bail should not be refused or withheld, merely on
technical grounds. Reference may be given to the case of Malik Mukhtiar Ahmed Awan
v. The State reported in 1991 SCMR, 322, relevant portion whereof is as under: --
"---497(5) ---Penal Cod e (XLV of 1860), S.302/307/149/ 148/120 -B---Constitution
of Pakistan (1973), Art.185(3) ---Bail, cancellation of -Contentions that a fugitive
from law was not entitled to the privilege of bail and that High Court should have
directed the accused to first a pproach Court of Session for bail were mere
technicalities in view of finding of High Court that there were no
reasonable grounds for believing that accused had committed the offences of
which he was being accused ---High Court had not m ade any error, requiring
interference by Supreme Court, in directing entertaining bail application of
accused ---Leave to appeal was refused in circumstances."
In view of the above discussion, Criminal Bail Application No.36 of 2011 is
hereby allowed, the applicant named above is admitted on pre -arrest bail on the terms and
conditions contained in the interim pre -arrest bail dated 22 -7-2011. The applicant is
directed to associate with the investigating agency as and when desired in the case by the
investiga ting. Bail granted.
H.B.T./74/Q Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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