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