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    Bakhtiar Vs State 2305

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    aslamali02022
    The petitioner Bakhtiar seeks post-arrest bail in a case where he is accused of illicit relations and fornication under sections 496-A and 496-B of the Pakistan Penal Code. The court notes that the mandatory provisions for prosecuting offenses under section 496-B were not followed, invalidating those proceedings. As for section 496-A, the essential elements of the crime are not clearly established based on the complaint. The court then grants bail to the petitioner with surety bonds, while also strongly criticizing the investigating officer for inappropriately declaring the children of the accused as illegitimate without due process or evidence.

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    Bakhtiar Vs State 2305

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    aslamali02022
    8 views5 pages
    The petitioner Bakhtiar seeks post-arrest bail in a case where he is accused of illicit relations and fornication under sections 496-A and 496-B of the Pakistan Penal Code. The court notes that the mandatory provisions for prosecuting offenses under section 496-B were not followed, invalidating those proceedings. As for section 496-A, the essential elements of the crime are not clearly established based on the complaint. The court then grants bail to the petitioner with surety bonds, while also strongly criticizing the investigating officer for inappropriately declaring the children of the accused as illegitimate without due process or evidence.

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    Bakhtiar vs State 2305

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    The petitioner Bakhtiar seeks post-arrest bail in a case where he is accused of illicit relations and fornication under sections 496-A and 496-B of the Pakistan Penal Code. The court notes that the mandatory provisions for prosecuting offenses under section 496-B were not followed, invalidating those proceedings. As for section 496-A, the essential elements of the crime are not clearly established based on the complaint. The court then grants bail to the petitioner with surety bonds, while also strongly criticizing the investigating officer for inappropriately declaring the children of the accused as illegitimate without due process or evidence.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    8 views5 pages

    Bakhtiar Vs State 2305

    Uploaded by

    aslamali02022
    The petitioner Bakhtiar seeks post-arrest bail in a case where he is accused of illicit relations and fornication under sections 496-A and 496-B of the Pakistan Penal Code. The court notes that the mandatory provisions for prosecuting offenses under section 496-B were not followed, invalidating those proceedings. As for section 496-A, the essential elements of the crime are not clearly established based on the complaint. The court then grants bail to the petitioner with surety bonds, while also strongly criticizing the investigating officer for inappropriately declaring the children of the accused as illegitimate without due process or evidence.

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    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 5

    1

    IN THE PESHAWAR HIGH COURT,


    PESHAWAR.
    [Judicial Department].

    Cr.Misc.BA No.2305-P/2018

    Bakhtiar son of Said Akbar,


    r/o Pakha Ghulam, Peshawar.

    Petitioner (s)
    VERSUS

    The State etc.

    Respondents

    For Petitioner :- Mr. Bakht Nawaz Khan, Advocate.


    For State :- Mr. Wajahat Hussain, Advocate.
    For complainant:- Nemo.
    Date of hearing: 12.11.2018

    ORDER

    ROOH-UL-AMIN KHAN, J:- Petitioner Bakhtiar, seeks


    post arrest bail in case FIR No.813 dated 26.09.2018,
    registered under sections 496-A and 496-B PPC, at Police
    Station Saddar, Mardan.
    2. The prosecution case is that on 21.09.2018 at
    15.10 hours, complainant Ziarat Khan made a report to
    local police that some 19 years back his marriage was
    solemnized with Mst. Sabaz Pari and from their wedlock
    during 10/11 years, three children i.e. (two sons and a
    daughter), were born. He then proceeded to Saudi Arabia
    for earning livelihood. He alleged that in the year 2010-
    2011, his nephew Bakhtiar (the petitioner) developed illicit
    relationship with his wife Mst. Sabaz Pari, as a result, she
    eloped with him, leaving behind her children. That due to
    disgrace and shame he kept mum and made no report in
    Police Station and that now he is fully satisfied that his
    wife has eloped with the petitioner. His report was
    2

    incorporated in Daily Diary No.8 dated 21.09.2018. An


    Inquiry under section 156 (3) Cr.P.C. was initiated. On
    27.09.2018, complainant recorded his statement under
    section 164 Cr.P.C. in which he besides the petitioner, also
    charged Mst. Sabaz Pari, on allegation of keeping illicit
    relation with petitioner and that as a result of the illicit
    relation two kids have been given birth by Mst. Sabaz
    Parai, hence, this case.
    3. Arguments of learned counsel for the parties heard
    and record perused.
    4. Section 496-B PPC defines fornication and
    provides its punishment. For the sake of convenience and
    ready reference the same is reproduced below:-
    “S.496-B Fornication:- (1) A man and a woman
    not married to each other are said to commit
    fornication if they willfully have sexual
    intercourse with one another.
    (2) Who ever commits fornication shall be
    punished with imprisonment for a term which
    may extend to five years and shall also be liable
    to fine not exceeding ten thousand rupees.”

    5. Section 203-C Cr.P.C. provides a proper procedure


    and mechanism for taking cognizance of an offence under
    section 496-B PPC. For the sake of convenience and
    guidance it is reproduced below:-
    “S.203-C. Complaint in case of fornication:- (1) No
    Court shall take cognizance of an offence under
    section 496-B of the Pakistan Penal Code, except on a
    complaint lodged in a Court of competent
    jurisdiction.
    (2) The Presiding Officer of a Court taking cognizance
    of an offence shall at once examine on oath the
    complainant and at least two eyewitnesses to the act of
    fornication.
    3

    (3) The substance of the examination of the complainant


    and the eyewitness shall be reduced to writing and shall
    be signed by the complainant and the witnesses, as the
    case may be, and also by the Presiding Officer of the
    Court.
    (4) If in the opinion of the Presiding Officer of a Court,
    there is sufficient ground for proceeding, the Court shall
    issue summons for the personal attendance of the
    accused.
    Provided that the Presiding Officer of a Court, shall
    not require the accused to furnish any security except a
    personal bond, without sureties, to ensure attendance
    before the Court in further proceedings.
    (5) The Presiding Officer of a Court before whom a
    complainant is made or to whom it has been transferred
    may dismiss the complainant, if, after considering the
    statements on oath of the complainant and the witnesses
    there is, in his judgment, no sufficient ground for
    proceeding and in such case he shall record his reasons
    for so doing.
    (6) Notwithstanding the foregoing provisions or
    anything contained in any other law for the time being in
    force no complaint under this section shall be
    entertained against any person who is accused of Zina
    under section 5 of the Offences of Zina (Enforcement of
    Hudood) Ordinance, and against whom a complaint
    under section 203-A of this Code is pending or has been
    dismissed or who has been acquitted or against any
    person who is a complainant or a victim in a case of
    rape, under any circumstances whatsoever”.
    The mandatory provisions of section S.203-C Cr.P.C. have
    not been complied with, nullifying all the proceedings to
    the extent of section 496-B PPC. In this view of the matter,
    section 496-B PPC is straightaway deleted from the FIR
    notwithstanding the confessional statement of petitioner,
    authenticity and voluntariness of which is yet to be
    determined during trial, as the petitioner has been shown
    arrested on 25.09.2018 and his alleged confession has been
    recorded on 29.09.2018 i.e. on the 5th day of his arrest. As
    4

    regards section 496-A PPC, complainant in his statement


    under section 164 Cr.P.C. has charged both the accused for
    keeping illicit relation. He has not specifically charged the
    petitioner for enticing or taking away his wife with intent
    that she may have illicit intercourse with him, which are
    the essential ingredients to constitute the offence under
    section 496-A PPC. Even otherwise, punishment provided
    for the offence under section 496-A PPC does not fall
    within the Prohibitory Clause of Section 497 Cr.P.C. and
    in such like cases grant of bail is a rule and refusal thereof
    an exception. On the face of record, there is no exceptional
    circumstance to clog the way of grant of bail to the
    petitioner.
    6. For the reasons discussed above, this petition is
    allowed. Accused petitioner is admitted to bail provided he
    furnishes bail bonds in the sum of rupees two lac with two
    sureties each in the like amount to the satisfaction of
    learned Illaqa Judicial Magistrate/MOD concerned.
    7. Before parting with the order I deem it appropriate
    to mention here that this Court has taken serious notice of
    the conduct and highhandedness of Investigation Officer,
    who has pre-decided the fate of legitimacy of two minor
    innocent children by placing their photographs on file with
    a foot note of “ . The extra labour done by the
    Investigating Officer coupled with the above declaration,
    speaks volumes about his conduct and interest in the case
    and further indicates that there was something black in the
    bottom. The I.O. has placed on file photographs of the lady
    accused and her two kids with absolute findings that these
    are “the illegitimate children” of Mst. Sabaz Pari and
    petitioner. When there was no DNA test of the kids with
    the petitioner or any other concrete proof in this regard, on
    mere allegations the Investigating Officer should not have
    passed such uncivilized verdict, particularly, playing with
    5

    the future and lives of the kids. The job of the Investigating
    Officer is only to collect evidence and not to give any
    findings. It is the Court to decide the case in light of the
    evidence recorded in the Court. The Investigating Officer
    by no stretch of imagination and under no law and
    authority was suppose to place pictures of the kids and
    their mother on file and quoting them with stigmatized
    words, particularly, in cases involving human dignity. The
    I.O. is warned to stop this type of practice and remain
    careful in future. He is further directed to remove the
    photographs of lay and her kids from the Judicial file and
    delete the un-parliamentary findings from the record.
    8. Copy of this order be placed before the worthy IG
    (Investigation) Khyber Pakhtunkhwa and SP, Mardan, who
    shall ensure the removal of the pictures of Mst. Sabaz Pari
    and her kids from the file, with intimation to this Court.
    Besides, strict legal action be taken against the
    Investigating Officer and other officials who have made
    extra labour for tarnishing the dignity and future of the
    kids.
    Announced:
    12.11.2018
    Siraj Afridi P.S. JUDGE

    SB of Hon’ble Mr. Justice Rooh ul Amin Khan.

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