Muhammad Ismail vs State Ss — 2024 MLD 1789 KARACHI-HIGH-COURT-SINDH

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Muhammad Ismail VS State Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 496-A & 34---Enticing or taking away or detaining with criminal intent a woman, common intention---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Admittedly, the alleged victim girl was married wife of the applicant and later due to matrimonial issues, they got separated; however, she again joined the applicant by performing second Nikkah with him---Per FIR, alleged abductee had disappeared from Bazar (market) and later complainant came to know that she had been abducted by her previous husband i.e. the applicant---Applicant allegedly had taken away the victim by force and, against her will from Bazar but she did not even raise her voice nor made any hue and cry; even the relatives-cum-alleged witnesses who were allegedly accompanying her at the time of her disappearance from Bazar, had remained mum and no plausible explanation for remaining quiet and calm had been furnished by the prosecution---Alleged victim appeared before the Magistrate for recording her S.164 Cr.P.C statement---Nikahnama produced by the complainant revealed that the victim girl had not only signed it at the time of Nikah before the Nikah Registrar but she also put her Thumb Impression below the signature in presence of the witnesses mentioned in the Nikahnama---Said fact had not been denied by alleged abductee in her statement under S.164, Cr.P.C, nor she got dissolution of such Nikah/marriage by filing any suit before the Court of law having jurisdiction---Hence, Nikah between spouse i.e. the applicant and victim girl was in existence and was intact---Therefore, in view of factual-cum-legal position of record, case against applicant required further probe---Complainant got instant case registered with a delay of one day without furnishing any plausible explanation---Delay so occasioned in lodgment of FIR showed that it had been registered after due deliberation---Section 164 Cr.P.C statement of alleged abductee was recorded at belated stage, hence, it could not be termed to be voluntarily rather it could be presumed to be under coercion---Offence with which applicant had been charged, carried maximum punishment of up to seven years, thus did not exceed limits of prohibitory clause of S.497(1), Cr.P.C.---Since the applicant and daughter of the complainant were husband and wife and Nikah solemnized/performed by them had not been dissolved, therefore, malafide on the part of prosecution due to previous grudge over matrimonial issues was in existence and showed malice on the part of prosecution---Therefore, basic ingredients for grant of pre-arrest bail were fully attracted in the case, which entitled the applicant for grant of anticipatory bail---Consequently, interim bail granted to applicant earlier was confirmed in circumstances.

Muhammad Ismail vs State Ss — 2024 MLD 1789 KARACHI-HIGH-COURT-SINDH

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