Zina Bil Jabar with wife is not possible

PLJ 2014 Cr.C . ( Lahore ) 464 [ Multan Bench Multan ] Present: Sardar Muhammad Shamim Khan, J. MUHAMMAD USMAN --Petitioner versus STATE and another --Respondents Crl . Misc. No. 4195-B of 2013, decided on 8.10.2013. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 496-A & 376--Bail, grant of--Allegation of committing zina-bil-jabr with abductee at different places--Factum of marriage was admitted--Genuineness of nikahnama --Delay of two months and seven days-- Abductee contracted marriage out of her own free will with accused--Contention of affidavit--She was not abducted by any body rather she was going to marry with accused out of her own free will--Suit for restitution of conjugal rights and suit for jactition of marriage were pending before Family Courts--Further inquiry--Held: According to the version of the complainant she was taken to different places by the accused persons but she did not raise any hue and cry at any public place--The petitioner was arrested and he was behind the bar for a period of more than five months--Petition was accepted and petitioner was admitted to post arrest bail. [P. 467] A & B Rana Asif Saeed , Advocate for Petitioner. Mr. Hassan Mahmood Khan Tareen , D.P.G. for State. Haji Muhammad Tariq Aziz Khokhar , Advocate for Complainant. Date of hearing: 8.10.2013. Order Muhammad Usman petitioner seeks post arrest bail in a case registered against him vide F.I.R No. 437/2012 dated 05.12.2012, offences under Sections 496-A/376, PPC at P.S. Sara-e- Sidhu District Khanewal . 2. According to the FIR, on 28.09.2012 at about 8/9:00 p.m., Muhammad Usman petitioner alongwith other co-accused Muhammad Bilal , Muhammad Azhar and Abid abducted Mst . Rashida Bibi complainant and took her to the house of one Gul Muhammad. It has further been alleged in the FIR that Muhammad Usman (petitioner), Azhar and Abid kept on committing Zina bil Jabr with her at different places. Hence, instant FIR was registered. 3. Learned counsel for petitioner contended that there was an extra ordinary delay of two months and seven days in lodging the FIR; that in-fact on 29.09.2012 Mst . Rashida Bibi alias Asia Bibi the alleged abductee contracted marriage, out of her own free will, with the petitioner and Nikahnama was duly registered at concerned union council; that before contracting marriage with the petitioner Mst . Rashida Bibi alias Asia Bibi sworn an affidavit contending therein that she was not abducted by any body rather she was going to marry with Muhammad Usman , out of her own free will; that Mst . Rashida Bibi alias Asia Bibi filed a private complaint titled " Mst . Asia Bibi vs. Muhammad Ramzan etc." for the offences under Sections 452/506, PPC against her father and brothers wherein factum of her Nikah with the petitioner was admitted by her; that Mst . Rashida Bibi alias Asia Bibi complainant also filed an application before learned Magistrate Khanewal , for lodging her at Dar ul Aman (women) Khanewal , wherein no allegation of abduction and Zina-bil-Jabr was levelled against the petitioner; that petitioner has filed a suit for restitution of conjugal rights against Mst . Rashida Bibi whereas Mst . Rashida Bibi alias Asia Bibi has filed a suit for jactitation of marriage against the petitioner which are pending adjudication before learned Judge Family Court concerned; that petitioner was arrested in this case on 18.04.2013 and he is behind the bar since his arrest. Thus, it is submitted that by accepting this petition petitioner is entitled to be released on bail. 4. Learned DPG and learned counsel for the complainant have opposed this petition on the grounds that petitioner was nominated in the FIR; that there was specific allegation against the petitioner that he alongwith other co-accused nominated in the FIR forcibly abducted Mst . Rashida Bibi and kept on committing Zina-bil-Jabr with her at different places; that complainant/victim had already contracted Nikah with one Qamar Abbas ; that during investigation petitioner was declared guilty by the police; that the offences alleged against the petitioner come within the purview of prohibitory clause of Section 497 Code of Criminal Procedure. Thus, it is submitted that petitioner is not entitled to be released on bail. 5. I have heard the arguments advanced by the learned counsel for parties and perused the record with care. 6. It has been noticed that the alleged occurrence took place on 28.09.2012 whereas the matter was reported to the police on 05.12.2012 with an extra ordinary delay of two months and seven days for which no proper explanation has been furnished by the complainant. Surprisingly after the alleged abduction of Mst . Rashida Bibi alias Asia Bibi her parents did not lodge FIR at Police Station. Copy of Nikahnama duly registered at concerned union counsel has been placed on the record which shows that on 29.09.2012 Mst . Rashida Bibi alias Asia Bibi contracted marriage with Muhammad Usman petitioner and on the same day before contracting marriage she sworn an affidavit contending therein that she was not abducted by any body and she was going to contract marriage out of her own free will, with Muhammad Usman petitioner. Mst . Rashida Bibi alias Asia Bibi filed a private complaint titled " Mst Asia Bibi vs. Muhammad Ramzan etc." for the offences under Sections 452/506, PPC against her parents and other family members and on the same day i.e. 22.10.2012 her statement was recorded by the learned Magistrate wherein she admitted the factum of her marriage with the petitioner. In her said statement, she categorically contended that she was not abducted by any of the accused. Mst . Rashida Bibi alias Asia Bibi complainant filed an application before learned Magistrate Khanewal , for lodging her at Dar ul Aman (women) Khanewal , wherein she categorically admitted that Muhammad Usman petitioner was her husband and that she was not abducted by any of the accused. Muhammad Usman petitioner has filed a suit for restitution of conjugal rights against Mst . Rashida Bibi whereas Mst . Rashida Bibi alias Asia Bibi has filed a suit for jactitation of marriage against the petitioner and both the aforementioned suits are pending adjudication before learned Judge Family Court Khanewal . Learned Judge Family Court after recording evidence of both the parties would come to the conclusion regarding genuineness or otherwise of Nikahnama of the petitioner with Mst . Rashida Bibi alias Asia Bibi . It has further been noticed that according to the version of the complainant she was taken to different places by the accused persons but she did not raise any hue and cry at any public place. The petitioner was arrested in this case on 18.04.2013 and he is behind the bar for a period of more than five months. 7. For what has been discussed above, case of the petitioner comes within the ambit of further inquiry, therefore, instant petition is accepted and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.200 ,000 /- (Rupees two lac only) with one surety in the like amount to the satisfaction of the learned trial Court. (R.A.) Bail accepted