If the abductee doesn't resist then offense is not attracted

PLJ 2012 Cr.C . ( Lahore ) 41 [ Bahawalpur Bench Bahawalpur ] Present: Altaf Ibrahim Qureshi , J. MUHAMMAD YAR alias ALLAH YAR--Petitioner versus STATE and another--Respondents Crl . Misc. No. 1320-B of 2011, decided on 24.8.2011. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 380, 365-B & 376--Bail, grant of--Further inquiry--Forcibly abduction for illicit purpose--Complainant was not eye-witness of occurrence--No person from locality come forwarded to witness open violence or restraint shown by alleged abductee --Validity--If there was no restraint or resistance or force shown by abductee , alleged abductee , then offence of abduction, prima facie, did not attract--Case of accused required further probe into his guilt--Bail was allowed. [Pp. 43 & 44] A & D Criminal Procedure Code, 1898 (V of 1898)-- ----S. 161-- Abductee filed a petition for recording her statement u/S. 164, Cr.P.C .--Two versions--Trial had commence and no need to record her statement--Validity--When abductee leveled allegation of her abduction and Zina with her, against accused--Such become a case of two versions, one put-forth after abduction of abductee through different petitions filed before different Courts and other after her recovery, veracity of which would be determined by trial Court after recording evidence--Application for recording of statement u/S. 164, Cr.P.C . filed by alleged abductee , after a hot contest had been dismissed by Magistrate, whereby he observed that trial of the case had commenced and there was no need to record her statement. [P. 43] B Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497--Bail, grant of--Delay of one month in lodging of FIR--Presumption of accused being falsely involved--Validity--Whereas nikah was allegedly performed 13 days prior to registration of case--Suit for Jactitation of marriage was still under adjudication before Court of competent jurisdiction--Accused was behind bars and his further detention in jail would not serve any useful purpose, when he was no more required by police for further probe--Bail was allowed. [Pp. 43 & 44] C Haji Khair Muhammad Bhadera and Ch. Sohail Akhtar Alkara , Advocates for Petitioner. Malik Muhammad Latif , DPG for State. M/s. Muhammad Sharif Bhatti and Asif Mehmood Pirzada , Advocates for Complainant. Date of hearing: 24.8.2011. Order Through the instant petition, the petitioner-Muhammad Yar alias Allah Yar seeks his post-arrest bail in a case arising out of FIR No. 67, dated 11.02.2011, registered with Police Station City, District Hasilpur , under Sections 380/365-B/376, P.P.C. 2. Precisely, the allegation against the petitioner is that on 12.01.2011 at 5.00 p.m. , he along with his co-accused forcibly abducted complainant's daughter namely Mst . Shazia Naseem for illicit purpose and also took away Rs.50 ,000 /- & gold ornaments weighing 07-tolas, when he along with his other family members was away to attend a marriage ceremony of his near relative. 3. Learned counsel for the petitioner submits that the offence under Sections 365/376, P.P.C. is not made-out against the petitioner. He further submits that Mst . Shazia Nasim has contracted marriage with the petitioner and Respondent No. 2 being unhappy with the said marriage, got registered a false case. It is next contended that said Mst . Shazia Nasim is an educated lady who herself appeared before the learned Sessions Judge, Bahawalpur where she in her complaint has admitted her Nikah with the petitioner; she also filed writ petition Bearing No. 1952/2011/BWP before this Court claiming herself to be sui juris ; she also filed an application before the learned Illaqa Magistrate for recording her statement u/S. 164, Cr.P.C . and a case for jactitation of marriage is also pending, therefore, the case of the petitioner falls within the ambit of further inquiry and he is entitled to be released on bail. It is lastly contended that the co-accused of the petitioner namely Muhammad Zubair Dilshad has already been granted post-arrest bail from the Court of learned Additional Sessions Judge, Hasilpur , hence, the petitioner also deserves the same treatment. 4. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed the bail petition on the grounds that Mst . Shazia Nasim has filed a petition for recording her statement under Section 164, Cr.P C. wherein she leveled allegations against the petitioner of her forcible abduction and zina with her, which is sufficient to connect him with the commission of a heinous offence, hence, the offence being covered by the prohibition contained in Section 497(1), the petitioner is not entitled for the concession of bail. 5. I have heard the arguments and perused the record. 6. From the bare perusal of the FIR, admittedly the complainant is not the eye-witness of the occurrence nor did any body from the locality come forward to witness the open violence or restraint shown by the alleged abductee during the course of abduction of complainant's daughter. If there is no restraint or resistance or force shown by Mst . Shazia Nasim , the alleged abductee , then the offence of abduction, prima facie, does not attract. In absence of evidence to show that as to how the parties accompanied each other, the story introduced vide FIR, prima facie, discloses a case of elopement, especially when the alleged abductee Mst . Shazia Nasim appeared before different Courts of law and made statements whereby she admitted her Nikah with the present petitioner. Much emphasis has been laid on the plea that the alleged abductee filed a petition for recording her statement under Section 164, Cr.P.C . wherein she levelled allegation of her abduction and zina with her, against the petitioner. If this be so, this becomes a case of two versions; one put-forth after the abduction of Mst . Shazia Nasim through different petitions filed before different Courts and the other after her recovery, the veracity of which would be determined by the learned trial Court after recording evidence. Even otherwise, the application for recording of the statement u/S. 164, Cr.P.C , filed by the alleged abductee , after a hot contest by the present petitioner, has been dismissed by the learned Magistrate Section 30, Hasilpur vide his order dated 14.06.2011, whereby he observed that the trial of the case has commenced and there was no need to record her statement. 7. The occurrence, as per body of the FIR, took place on 12.01.2011 at 5:00 p.m. and inspite of having knowledge of abduction on the same day by the present petitioner and others, the complainant made himself available on 11.02.2011 to lodge the FIR. There is a delay of one month in lodging of the FIR for which no explanation has been offered, which although is not fatal but gives rise to a presumption of the petitioner being falsely involved in this case. Besides this, the FIR was lodged on 11.02.2011 whereas the Nikah was allegedly performed on 28.01.2011 i.e. 13 days prior to the registration of case. Suit for jactitation of marriage is still under adjudication before the Court of competent jurisdiction. 8. Petitioner is behind the bars since 19.04.2011 and his further detention in Jail would not serve any useful purpose, when he is no more required by the police for further probe. Even otherwise, vide order dated 26.03.2011, the learned Additional Sessions Judge, Hasilpur , released the co-accused of the petitioner namely Muhammad Zubair Dilshad on post-arrest bail, who during the course of investigation was declared innocent. This is also a plus point to go in favour of the present petitioner, making the story of the prosecution doubtful. 9. In view of the above, the case of the petitioner requires further probe into his guilt. Resultantly, the infant petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2 ,00,000 /- with one surety in the like amount to the satisfaction of the learned trial Court. (R.A.) Bail allowed.