PESHAWAR: Peshawar High Court has rejected bail plea of a suspect arrested for ‘enticing and marrying’ a 14-year-old niece of his wife over two months ago.

A single-member bench consisting of Justice Mohammad Naeem Anwar, while rejecting petition of the suspect, Fahimullah, a resident of Upper Chitral, ruled that even, if any, consent of the alleged abductee was available, the offence of rape was prima facie made out as she was below 16 years of age.

The petitioner’s counsel contended that the alleged abductee after her recovery recorded her statement under section 164 of the Criminal Procedure Code before the magistrate concerned, wherein she had stated that being a ‘sui juris’ (legal capacity to act on her own behalf) she had contracted nikah with the petitioner on her free will and consent.

He stated that the alleged abductee being a consenting party, bail could not be refused to the petitioner.

The bench ruled: “In view of tender age of the victim her alleged consent is of no legal consequences as she is below the age of 16 years and despite her consent, if any, the offence of rape as defined in section 375 PPC (Pakistan penal Code) is prima facie made out in the present case.”

The bench observed that it was evident from perusal of the record that the petitioner had directly been charged by the complainant (father of the girl) for the forceful abduction of his minor daughter, aged about 14 years as per Nadra record.

The bench observed that the medical evidence of the alleged abductee was in line with the version of prosecution.

“Tentatively, sufficient evidence is available on record which shows prima facie nexus of the present petitioner with commission of the offences of heinous and serious nature, the punishment of which attracts the restrictive clause of section 497 CrPC, therefore, he is not entitled to the concession of bail,” the bench pronounced.

The petitioner was charged in an FIR registered at Torkhnow police station, Upper Chitral, on Oct 22, 2024, under section 376 (punishment for rape), 365-B (kidnapping or inducing woman to compel for marriage) of Pakistan Penal Code, section 53 (sexual abuse) of Khyber Pakhtunkhwa Child Protection and Welfare Act, section 3 of the KP Prevention of Trafficking in Persons Act and section 4 and 5 of the Child Marriage Restraint Act, 1929.

The complainant in the FIR was father of the alleged victim, who had charged the petitioner with abduction of his daughter with an intention to compel her for marriage.

He stated that his daughter was a student of ninth grade and on Oct 16, 2024, she didn’t return from her school. He added that when he contacted her daughter’s schoolteacher, he was informed that she had not attended the school on that day.

He stated that he searched for his daughter at residence of his relatives, but she couldn’t be traced. Subsequently, he said he came to know that she had been taken away by the petitioner, who happened to be husband of his sister-in-law.

Earlier, bail petition of the suspect was rejected by an additional sessions judge, Upper Chitral, Raja Mohammad Shoaib on Nov 29.

That court had ruled that as the abductee was around 14 years of age, therefore, nikah of a minor had no legal value.

The court had further ruled that maternal aunt of the abductee was wife of the accused and in such circumstance the subsequent nikah, if considered, came within ambit of prohibitory degree as commanded by Almighty Allah in verse 23 of Surah Nisa.

Published in Dawn, January 6th, 2025