PLJ 2013 Cr.C.
(Peshawar
[Bannu Bench Bannu]
[Bannu Bench Bannu]
Present: Rooh-ul-Amin Khan, J.
MUHAMMAD YOUNAS
and another--Petitioners
versus
MUHAMMAD HANIF
KHAN & another--Respondents
Crl. Misc. (BA) No.
63-B of 2013, decided on 30.4.2013.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 365(B)/376--Bail grant
of--Further inquiry--Allegation of Zina bil Jabr--Allegations of the abductee regarding commission of Zina
bil jabr with her by the
two petitioners in the motorcar in juxtaposition with her medical report and
the negative FSL report qua her vaginal swab, the case requires farther probe
into the guilt of accused-petitioners and the circumstances, the begging
question to be answered by the prosecution would be as to whether it is a case
of simple attempt of committing Zina Bil jabr or whether the facts and
circumstances suggest the kidnapping or inducing of abductee
by the petitioner with intent to compel her to marriage against her will or to
force or seduce her to illicit intercourse--Section 365-B, P.P.C. signifies the
carrying away of a woman by any means with an aim that she may be compelled to
marriage or forced or made to illicit intercourse, against her will--Two main
components and ingredients of the offence, firstly, there must be kidnapping or
abduction of a woman and secondly, the first act of abduction and kidnapping,
must be with intent that she may be compelled to marriage or be forced or
seduced to illicit intercourse--In the instant case all the above said elements
are missing. [P. 531] A
Bail--
----It is true
that inducing of a woman/girl for taking improper advantage of her
inexperienced, callowness and youth is a serious and flagitious crime in the
society but it is also settled law that the mere fact that accused-petitioners
are charged for heinous offence falling within the restrictive Clause of
Section 497, Cr.P.C. would not hamper in the way of
bail, if otherwise, they nave made out a case of
bail, on merits--Held: A person who is entitled to grant of bail should not be
kept in the jail--Even a single day of detention of an innocent accused could
not be compensated, after his acquittal at the conclusion of the case--One must
remember that freedom of an individual is a precious right--Personal liberty of
an individual should not be snatched away from him unless; it becomes necessary
to deprive him of his liberty under the law--It follows that no one can be
refused to be enlarged on bail as a punishment, if he is otherwise, entitled to
be so enlarged--Law of bail has to dovetail two conflicting demands, namely,
requirements of society for being shielded from hazards of being exposed to
misadventure of a person alleged to have committed a crime, on the one hand,
and fundamental canon of criminal jurisprudence, namely, the presumption of
innocence of an accused, till he is found guilty, on the other. [P. 531] B
Mr. Muhammad Ashraf Khan Marwat, Advocate for
Petitioners.
Mr. Ahmad Farooq Khattak, AAG for
Respondents.
Date of hearing:
30.4.2013.
Judgment
Petitioners Muhammad
Younas and Rehmatullah,
being unsuccessful to get the relief of bail from the two Courts below, by way
of instant application, seek the same relief from this Court in case F.I.R No.
90, dated 19.02.2013, registered under Sections 365-B/376 P.P.C, registered at
Police Station Lakki Marwat
District Lakki Marwat.
2. The prosecution case is that on the night of
15.02.2012, Mst. Nazia Hanif daughter of Muhammad Hanif
Khan went missing. Her father Muhammad Hanif reported
to local police regarding her missing that on that night he along with his
wife, four daughters and two minor sons was asleep in his room and at 4.00 a.m.
when he woke up, he found his daughter Mst. Nazia Hanif missing, who was
searched but with no fruitful result. Complainant alleged her daughter has also
taken away 6/7 tolas gold along with her. He charged
unknown culprits for abduction/enticing her daughter for illicit relations. He
disclosed that he has no enmity with any body and on
getting the knowledge about the occurrence he will charge the actual culprits.
Later on, Mst. Nazia Hanif recorded her statement under Section 164, Cr.P.C. wherein she charged the present petitioners for her
abduction and committing Zina Bil
jabr with her.
3. I have heard the arguments of the learned
counsel for the parties and have gone through the record.
4. Much was argued on behalf of either side, but
discussion on all those points in detail would certainly be a deeper
appreciation of material on record and would amount to expression of opinion
regarding merits of the case, which has always been deprecated by the superior
Courts, at bail stage, as it may prejudice the case of either side. Suffice it
to say that both the petitioners have not been charged directly by the
complainant in his report. The mode of occurrence as narrated by father of the abductee and later on, by the abductee
herself in her statement recorded under Section 164, Cr.P.C.
is indicative of the fact that she herself left the house at her own accord.
Neither she, nor the alleged 6/7 Tolas gold, forcible taken by the accused has been
recovered either from the direct or indirect possession of the
accused-petitioners. As pre arrest Card, both the accused-petitioners have been
arrested on 19.02.2012, while Mst. Nazia Hanif, the alleged abductee has been examined under Section 164, Cr.P.C.,
on 20.02.2013, a day later of the arrest of accused-petitioners. Keeping in
view the allegations of the abductee regarding
commission of Zina bil jabr with her by the two petitioners in the motorcar in juxtaposition
with her medical report and the negative FSL report qua her vaginal swab, the
case requires further probe into the guilt of accused-petitioners and the
circumstances, the begging question to be answered by the prosecution would be
as to whether it is a case of simple attempt of committing Zina
Bil jabr or whether the
facts and circumstances suggest the kidnapping or inducing of Mst. Nazia Hanif
by the petitioner with intent to compel her to marriage against her will or to
force or seduce her to illicit intercourse. Section 365-B P.P.C. signifies the
carrying away of a woman by any means with an aim that she may be compelled to
marriage or forced or made to illicit intercourse, against her will. The plain
reading of the section indicates two main components and ingredients of the
offence, firstly, there must be kidnapping or abduction of a woman and
secondly, the first act of abduction and kidnapping, must be with intent that
she may be compelled to marriage or be forced or seduced to illicit intercourse.
In the instant case all the above said elements are missing.
5. It is true that inducing of a woman/girl for
taking improper advantage of her inexperienced, callowness and youth is a
serious and flagitious crime in the society but it is also settled law that the
mere fact that accused-petitioners are charged for heinous offence falling
within the restrictive Clause of Section 497, Cr.P.C.
would not hamper in the way of bail, if otherwise, they have made out a case of
bail, on merits. A person who is entitled to grant of bail should not be kept
in the jail. Even a single day of detention of an innocent accused could not be
compensated, after his acquittal at the conclusion of the case. One must
remember that freedom of an individual is a precious right. Personal liberty of
an individual should not be snatched away from him unless; it becomes necessary
to deprive him of his liberty under the law. It follows that no one can be
refused to be enlarged on bail as a punishment, if he is otherwise, entitled to
be so enlarged. The law of bail has to dovetail two conflicting demands,
namely, requirements of society for being shielded from hazards of being
exposed to misadventure of a person alleged to have committed a crime, on the
one hand, and fundamental canon of criminal jurisprudence, namely, the
presumption of innocence of an accused, till he is found guilty, on the other.
6. For what has been discussed above, on
tentative assessment of the material on record, the case of the petitioners is
arguable for the purpose
of bail. Resultantly, instant application is allowed
and both the accused-petitioners are admitted to bail provided each one of
them, furnishes bail bonds in the sum of Rs.2,00,000/- (two lacs)
with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate concerned.
(A.S.) Bail granted
