--S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 376 & 342--Pre-arrest bail, grant of--Confirmed--Allegation of--FIR was lodged with almost 9 months delay--Third marriage of petition-

 PLJ 2022 Cr.C. 576

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 376 & 342--Pre-arrest bail, grant of--Confirmed--Allegation of--FIR was lodged with almost 9 months delay--Third marriage of petition--Differences arose between parties--It is pertinent to mention here that at that time, also complainant was at liberty to get record her statement but she has not uttered a single word with respect to allegations leveled in crime report against petitioner--Subsequently
being annoyed with petitioner and at behest of her parents, complainant got registered this case--Divorce has been effected between spouses--Held: It has now been well settled by Apex Court that malafide can be gathered from facts and circumstances of case also--It is also noteworthy that it is settled proposition of law that even merits of case can be touched upon while deciding a pre-arrest bail application--Petition accepted and bail confirmed.

                                                                      [Pp. 578 & 579] A, B & C

PLD 2017 SC 730, PLD 201 SC 708 and PLD 2021 SC 898.

M/s. Zaka-ur-Rehman & Sheraz Zaka, Advocates with Petitioner.

Mr. Muhammad Moeen Ali, DPG for State.

Ms. Khadija Adlibe, Advocate for Complainant.

Date of hearing: 25.11.2021.

 PLJ 2022 Cr.C. 576
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
IRFAN AHMAD--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 41556-B of 2021, decided on 25.11.2021.

Order

Through this petition, Irfan Ahmad, petitioner craves pre-arrest bail in case FIR No. 174/2021, dated 20.03.2021 for the offence under Sections 376, 342, PPC registered at Police Station, Haier District Lahore.

2. I have heard the learned counsel for the petitioner and learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and perused the record minutely with their able assistance.

3. The alleged occurrence in this case had taken place on 18.06.2020, whereas, FIR was lodged on 20.03.2021 with the delay of almost 9 months and 2 days, meaning thereby possibility of due deliberation and consultation cannot be ruled out. Reliance is placed upon case law titled as "Khair Muhammad and another vs. The State through PG Punjab and another" (2021 SCMR 130).

4. According to the narration of FIR, complainant was married with the petitioner on 11.06.2019; the relations between the parties remained cordial for sometimes; subsequently the complainant came to know that it was a third marriage of the petitioner with her and thereafter differences arose between the parties.

5. Learned Law Officer assisted by the learned counsel for
the complainant argued that petitioner got filed a suit for dissolution of marriage in the Court of Judge Family Court after forcibly
obtaining her signatures on the plain papers and he also forced the complainant to relinquish (Haq-ul-Mehr) and succeeded in his attempt. They also argued with vehemence that the petitioner after obtaining decree of dissolution of marriage dated 18.06.2020, retained the complainant with him and thereafter committed rape with her for almost 8 months.

6. I have noted that on 01.02.2021, the complainant appeared before the Court of learned Special Judicial Magistrate and submitted an application with the prayer that she wants to lodge in Dara-ul-Aman which was allowed. At that time, the complainant had not described the facts mentioned in the FIR in her application for lodging her in Dar-ul-Aman nor got recorded any statement before the learned Magistrate in that respect. It is also noteworthy that Farkhanda Jabeen mother of the complainant submitted an application before the Court of Learned Magistrate Section-30 Lahore that her daughter namely Qurat-ul-Ain (complainant) intends to accompany her for the reasons, she be allowed. On 26.02.2021, the complainant was produced before the Court of learned Judicial Magistrate First Class District Courts, Lahore who got recorded her statement that she wants to accompany her uncle namely Agha Babar and does not want to go Dar-ul-Aman; on the above mentioned statement of the complainant, she was set at liberty. It is pertinent to mention here that at that time, also the complainant was at liberty to get record her statement but she has not uttered a single word with respect to the allegations leveled in the crime report against the petitioner. Subsequently being annoyed with the petitioner and at the behest of her parents, complainant got registered this case. I have also noted that divorce has been effected between the spouses on 26.05.2021.

7. As far as the contention made by the learned Law Officer that petitioner has failed to point out any malafide or ulterior motive of the complainant as well as police which are sine qua non for the confirmation of pre-arrest bail. I am not in agreement with the contention made by the learned Law Officer because it has now been well settled by the Apex Court that malafide can be gathered from the facts and circumstances of the case also. I am guided by the case laws titled as "Khalil Ahmad Soomro ,and others v. The State" (PLD 2017 SC 730) wherein the Hon'ble Supreme Court of Pakistan held as under:

          "Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide."

Reference can also be made to the case law reported as Shahzada Qaiser Arfat alias Qaiser vs. The State and another (PLD 2021 SC 708).

8. It is also noteworthy that it is settled proposition of law that even the merits of the case can be touched upon while deciding a pre-arrest bail application. Reliance is placed upon the case "Sajid Hussain alias Joji v. The State and another" (PLD 2021 SC 898).

9. Petitioner has joined the investigation, nothing is to be recovered from him and no useful purpose would be served by sending him behind the bars.

10. For the above reasons, this petition is accepted and ad-interim pre-arrest bail already granted to the petitioner Irfan Ahmad is confirmed subject to his furnishing fresh bail bonds in the sum of
Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.

11. It is, however, clarified that the observations made herein above are tentative in nature, and strictly confined to the disposal of this bail petition.

(A.A.K.)          Bail confirmed