IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Misc. Application No. 146 of 2017

Karim Bux……………………………………..…………...…………………..Applicant

Versus

The State and another……………………….…………..……………….Respondents

Date of Hearing & Order : 14.11.2017

Mr. Shabbir Ahmed Kumbhar, advocate for the applicant

Mr. Jamil Ahmed Shah, advocate for respondent No.2

Mr. Muntazir Mehdi, DPG

O R D E R

.-.-.-.-.-.

FAHIM AHMED SIDDIQUI, J: Through the instant Criminal Misc. Application, the applicant is seeking cancellation of pre-arrest bail granted by Ist Additional Sessions Judge Thatta in Crl. B.A. No. 707/2017 vide order dated 18.08.2017 whereby ad-interim pre-arrest bail earlier granted to respondent No.2 was confirmed in FIR No.68/2017 registered under Section 365-B, 324, 344, 376 PPC of PS Mirpur Sakro.

2. The allegations against respondent No.2 are that he abducted the niece of complainant namely Mst. Zeenat, aged 16/17 years, under the show of weapon and subjected her Zina. It is also alleged that respondent No.2 is husband of elder sister of abductee.

3. While pressing instant criminal Misc. application, learned counsel for the applicant submits that abductee is married but Rukhsati has not yet been held. He also submits that the niece of complainant was forcibly abducted and Zina was committed by respondent No.2 and subsequently he tried to kill her by drowning in a stream known as KD Nali. According to him, abductee recorded her statement under Section 164 CrPC and contradictions in the same are minors and actually the questions in cross during 164 CrPC statement amounts to an admission on the part of respondent No.2. He further submits that learned trial Court at the time of disposing of pre-arrest bail has thrashed out the evidence in an impermissible manner. He also submits that at the time of handling an application under Section 498 CrPC, learned trial Judge had to consider the malafide and false involvement. According to him, the act of Zina is confirmed by medical officer. He submits that respondent No.2 is an influential person and he is serving in police department as Head Constable and is under the personal staff of S.P Malir. He further submits that after granting bail, respondent No.2 is threatening the complainant and abductee as such an application has been moved to high-ups of police department. He puts reliance on 2004 SCMR 244, 2004 SCMR 1160, 2007 SCMR 482, 2004 PCrLJ 1135, 2004 PCrLJ 78 and 2010 PCrLJ 1337.

4. While opposing instant criminal misc. application, learned counsel for respondent No.2 submits that there is delay in lodging FIR in which abductee was shown virgin but in the cross conducted at the time of recording 164 CrPC, she states that she is married. He submits that there are several contradictions in the statement recorded under Section 164 CrPC as well as FIR. He points out that sister of abductee is still residing with respondent No.2 and she is present in Court alongwith her husband. He submits that actually the complainant has enmity with respondent No.2 over a plot of land due to which, he has managed this false case against respondent No.2 just to pressurize him and usurp his plot. He further submits that mere moving of application to higher authority is not a ground for cancelltion of bail. He puts his reliance on 2016 SCMR 676, 2003 YLR 2910 and 2010 YLR 1275.

5. Learned DPG for the state submits that medical certificate is issued at later stage and at the time of granting bail, same was not available. He further submits that no mark of struggle was found on the body of abductee. He suggests that matter may be remanded to trial Court for fresh decision after giving an opportunity to the complainant to address trial Court and considering medical certificate.

6. In the instant matter, certain aspects require consideration. Allegations are serious in nature and in such type of cases, propriety demands that notice to the complainant and abductee/prosecutrix should have been given but learned trial Judge did not give such notice and decided the matter only after hearing learned counsel for respondent No.2. From the final medical certificate, it transpires that abductee/ prosecutrix is subjected to the sexual intercourse. As far as contradictions in the FIR and 164 CrPC statement of abductee regarding virginity of abductee are concerned, learned counsel for the applicant has reasoned it out by submitting that the marriage of abducted was not consumed at the time of alleged incident as such the version taken in the FIR that she is virgin, appears to be correct. From the impugned order, it appears that learned trial Judge has given deeper appreciation of evidence at the time of disposing of an application under Section 498 CrPC. In view of medical certificate, commission of sexual act is established and age of abductee is shown as 16/17 years, therefore, as per the provision of Juvenile Justice System Ordinance, she will be considered as minor. I am of the view that pressing of ground regarding mark of struggle in the case of Zina, is not necessary for such a tender aged girl specially when allegations of serious nature have been levelled. It is hard to believe that complainant and prosecutrix will involve respondent No.2 with a motive of dispute over a plot of land when respondent No.2 is husband of elder sister of abductee and abductee is a married girl and her rukhsati is to be taken place as such her modesty and rukhsati are at the stake. The pre-arrest bail was granted by trial Court to respondent No.2 under Section 498 CrPC but in the present case possibility of false involvement and malafide are absent as such I am of the view that the impugned order passed by learned Ist Additional Sessions Judge Thatta is contrary to the scheme of law and in the existing circumstances, extraordinary relief of pre-arrest bail was wrongly granted by trial Court to respondent No.2. Needless to say that the case-laws cited by learned counsel for the applicant proceed to the facts and circumstances of the case in hand while case-laws cited by learned counsel for respondent No.2 are distinguishable.

7. The upshot of above discussion is that instant criminal misc. application is allowed and the impugned order dated 18.08.2017 passed by learned Ist Additional Sessions Judge Thatta in Crl.B.A.No.707/2017 is set aside.

J U D G E