IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No.S-132 of 2018

Applicant               :                Asadullah son of Guhuram Kolachi, Through Mr.Himath Ali Gadehi, Advocate

Complainant       :                   Abdul Rasool Kolachi, through

Mr.Noor Hussain Khoso, Advocate

State                              :                  Through Mr.Raja Imtiaz Ali Solangi,  A.P.G.

Date of hearing   :                  30.07.2018          

Date of order      :                  30.07.2018

O R D E R

IRSHAD ALI SHAH, J.- It is alleged that the applicant with rest of the culprits, abducted Mst.Seema to marry her and/or to subject her to rape against her wishes, for that the present case was registered.

2.                    On having been refused post-arrest bail by learned trial Court, the applicant has sought for the same from this Court by way of instant application under section 497 Cr.PC.

3.                    It is contended by learned counsel for the applicant that there is delay of about 22 days in lodging of the FIR, Mst.Seema has married with applicant of her own free-will and she has gone of her own accord to her parents and now has resiled from such marriage, the applicant is in custody since one year, co-accused Qurban has already been admitted to bail. By contending so, he sought for release of applicant on bail on point of further enquiry and consistency. In support of his contention he relied upon case of Mushtaq vs. the State (2012 MLD-1958), 2). Case of Shamas Din vs. the State (2014 MLD-473), 3).Case of Muhammad Farooq vs. the State (PLJ 2008 Cr.C(Lahore)-601), and 4).Case of Kashif alias Kashi vs. the State (PLD 2009 Cr.C(Lahore)-460).

4.                    Learned counsel for the complainant and learned A.P.G for the State have opposed to release of applicant on bail by contending that it was he who abducted Mst.Seema, subjected her to torture and rape and then arranged for false “Nikahnama” to save him from legal consequences and now is defeating trial without any justification and his case is distinguishable to that of co-accused Qurban. By contending so, they sought for dismissal of the instant bail application of the applicant. In support of their contention they relied upon case of Aamar Ali vs. the State (2009 PCr.LJ-593), and 2). Case of Ramoon alias Ramzan and another vs. the State (2011 MLD-340).

5.                    I have considered the above arguments and perused the record.

6.                    The name of the applicant is appearing in FIR with specific allegation that he with rest of the culprits, being armed with deadly weapons, after keeping complainant party under fear of death abducted Mst.Seema with intention to marry her and/or to subject her to rape. In that situation, it would be pre-mature to say that he being innocent has been involved in this case falsely by the complainant party. No doubt there is delay of about 22 days in lodging of the FIR but there could be made no denial to the fact that it is explained in FIR itself. The delay in lodging of the FIR in case like present one being natural could not be resolved by this Court in favour of the applicant at this stage. It is true that Mst.Seema was not recovered from the applicant and she came of her own at Police Station Mehar, but there could be made no denial to the fact that she made her escape good from the captivity of the applicant by taking advantage of chance. It was stated by Mst.Seema in her 161 and 164 Cr.PC statements that the applicant not only tortured her but has subjected her to rape, which allegation is proved on her medical examination. In that situation, the applicant could not be permitted to take advantage of “Nikahanama”, which is said to have been managed by him with a view to save him from legal consequences. The applicant may be in custody for about 12 months but it is he who as per learned counsel for the complainant and learned A.P.G for the State is found defeating the trial. The case of applicant is distinguishable to that of co-accused Qurban Ali, who has already been admitted to bail by learned trial Court. No allegation of rape was attributed by Mst.Seema against co-accused Qurban Ali. There appear reasonable grounds to believe that the applicant is guilty of the offence with which he is charged.

7.                    The case law relied upon by learned counsel for the applicant is on distinguishable facts and circumstances. In case of Mushtaq (supra), the main reason for admitting the accused to bail was that the abductee performed “Nikkah” with the accused and her abduction on investigation was not proved. In the instant matter, the “Nikahnama” is said to be managed by the applicant and the abduction of abductee on his part on investigation is proved. In case of Shamas Din (supra) the main reason for admitting the accused to bail was that there were three statements of alleged abductee which were contradictory to each other. In the instant matter, the abductee is consistent on the point that it was applicant who abducted her and then subjected her to torture. In case Muhammad Farooq (supra), the main reason for admitting the accused to bail was that he was declared to be innocent by the police on investigation. In the instant case, the applicant is not declared to be innocent by the police on investigation. In case of Kashif alias Kashi (supra), the main reason for admitting the accused to bail was that the story narrated in FIR and statement made by the abductee were at variance and contradictory. In the instant matter, no much variance or contradiction is found in story narrated in the FIR and statement made by the abductee.

8.                   In view of the facts and reasons discussed above, while relying upon the case law which is referred by learned counsel for the complainant and learned A.P.G for the State, it could be concluded safely that no case for grant of bail to the applicant is made out. Consequently, his application for his release on bail is rejected.

                             J U D G E

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