Ghulam Rasool v. the State,

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.