ORDER SHEET
IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Cr. Bail. Appln. No. S – 183 of 2019
Date Order
with Signature of Hon’ble Judge
For hearing of bail application
13-05-2019
Mr. Irshad Hussain Dharejo advocate
for applicant.
Mr. Ghulam Mujtaba Jakhar Advocate
for complainant
Mr.
Shafi Muhammad Mahar DPG
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Irshad Ali Shah, J; It is alleged that the applicant with rest of the
culprits abducted complainant Mst. Nirma, kept her confined illegally and then
subjected her to rape for that the present case was registered.
2. The applicant on having been
refused pre-arrest bail by learned I-Additional Sessions Judge Khairpur has
sought for the same from this Court by way of instant application under section
498-A Cr.PC.
3. It is contended by learned
counsel for the applicant that applicant being innocent has been falsely
involved by the complainant, in order to satisfy her grudge with her malafidely,
she even otherwise is legally wedded wife of the applicant, which is proved of
the fact that she and applicant sought for protection from this Court by way of
filing of Constitutional Petition. Co-accused Ameer Gul even otherwise on same
role according to him, has already been admitted to bail by trial court and in
that situation no useful purpose would be served if the applicant is taken into
custody and then admitted to bail on point of consistency.
4. Learned DPG for the State
and learned counsel for the complainant have opposed to grant of pre-arrest
bail to the applicant by contending that he has participated in commission of
the offence actively.
5. I have considered the above
arguments and perused the record.
6. If the complainant was
actually abducted then it was obligatory upon her relatives to have reported
the incident of her abduction to police. It was not done by them, which appears
to be significant. The FIR of the incident has been lodged by the abductee
herself, that too with delay of about one year, such delay could not be lost
sight of. It is also brought on record that the complainant claiming the
applicant to be her husband sought for protection from this Court by preferring
a Constitutional Petition. If for the sake of arguments, it is believed that
the complainant is not legally wedded wife of the applicant then there could be
made no denial to the fact that his case is identical to case of co-accused
Ameer Gul (who allegedly has committed rape with the complainant together with
the applicant and) has already been admitted to bail by learned trial court. In
that situation it is rightly being contended by learned counsel for the
applicant that no useful purpose would be served if the applicant is taken into
custody and then isadmitted to bail on point of consistency.
7.
In case of Muhammad Ramzan vs. Zafarullah and others
(1986 SCMR 1380), it has been held by Honourable Apex Court that;
“‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑‑In a case of murder accused (respondent,
was granted bail before arrest while other accused were granted bail after
arrest‑‑Petitioner choosing to challenge bail
granted to accused (respondent) before arrest and
not challenging bail granted to other accused after arrest although latter were
falling in same category to which accused (respondent) belonged‑‑Prima facie case of petitioner not
distinguishable from that of other: to whom bail had been allowed‑‑Held,
no useful purpose was likely to be served if bail of accused (respondent) was
cancelled on any technical ground because after arrest he could again be
allowed bail on the ground that similarly placed other accused were already on
bail‑‑
Interference declined
by Supreme Court.”
8. In view of the above, the
interim pre-arrest bail already granted to the applicant is confirmed on same
terms and conditions.
The instant application
is disposed of in the above terms.
Judge
Rafi