Rape is not possible with wife

PLJ 2011 Cr.C. (Lahore) 833 [Multan Bench Multan] Present: Mansoor Akbar Kokab, J. ASHIQ MUHAMMAD--Petitioner versus STATE and another--Respondents Crl. Misc. No. 4010-B of 2009, decided on 12.11.2009. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497(2), Pakistan Penal Code, (XLV of 1860), Ss. 376(i), 365-B, 467, 468, 471 & 109--Bail, grant of--Further inquiry--Allegation of zina-bil-jabar with minor daughter under cloak of nikah ceremony--Petitioner had been innocent as family dispute and criminal case made by present complainant against petitioner--Contents of application were contrast allegation made in FIR--Pertaining to alleged abductee herself had moved justice of peace for restrainment of certain respondents causing undue harassment and main respondent against whom relief was sought was present complainant and when abductee at time she made application abductee was residing with father, the present petitioner--Irrespective nikahnama which was admitted by petitioner got conducted marriage of own daughter--Such marriage had never been denied daughter herself nor challenge any Court of law--Bail was accepted. [P. 834] A Mr. Saghir Ahmad Bhatti, Advocate for Petitioner. Malik Muhammad Rafique Khokhar, DPG for State. Date of hearing: 12.11.2009. Order Present petitioner is in the judicial lock-up vide FIR registered at Police Station Saddar Lodhran, District Lodhran, dated 15.4.2009, by one Mst. Atta Elahi, divorcee wife of the present petitioner, wherein she narrated that the petitioner along with 8 other persons allegedly abducted her daughter named Maqsoodan Bibi alia Parveen Bibi on 10.2.009 i.e. two months before lodging of the FIR and handed over the same to his accomplices, who fled away to some unknown destination, whereas her daughter was made to put her thumb impression on some papers and the accused Ghulam Mustafa allegedly committed Zina-bil-Jabr with the minor daughter under the cloak of nikah ceremony. Allegedly she made an application to the Justice of Peace for the recovery of the daughter, who appeared in the Court and the custody was handed over to her.

2. Learned counsel for the petitioner in the light of so far investigation conducted, appraises that the petitioner has been declared innocent as the family dispute between the present petitioner and her ex-wife, who was divorced in the year 1997 was the actual crux of constant litigation and criminal cases made by the present complainant against the petitioner. He refers the application made to the Justice of Peace referred in the FIR for the alleged recovery of the same daughter, wherein the present petitioner was the only private respondent, whereas the SHO was Respondent No. 1 and in the said petition, the petitioner was said to have called the daughter outside the house and went away on a Rickshaw. The contents of that application are at contrast to the allegations made in the FIR pertaining to the alleged abduction of the girl by a band of persons headed by the petitioner. It is pertinent to note that the alleged abductee Parveen Bibi herself had moved the learned Justice of Peace for restrainment of certain persons/respondents from causing the undue harassment to her and the main respondent, against whom the relief was sought, was the present complainant Mst. Atta Elahi and at the time when she made the application, she was residing with her father, the present petitioner.

3. Irrespective of Nikahnama with Ghulam Mustafa, which is admitted by the petitioner as he himself got conducted the marriage of his own daughter with Ghulam Mustafa, it is pertinent to note that such marriage has never been denied by the daughter herself nor challenged any where before any Court of law. The petitioner has a case of further enquiry. Hence he is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 50,000- with one surety in the like amount to the satisfaction of the learned trial Court. (S.L.) Bail admitted.