ORDER SHEET
IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-338 of 2022
Cr. Bail
Application No.S-345 of 2022
Applicants: Zaheer Ahmed
and others, through
M/S
Ali Gul Abbasi and Muhammad
Zohaib
Azam, Advocates
Complainant: Aijaz Ali
Khaskheli, through
Mr.
Muhammad Ali Napar, Advocate
State: Through
Mr. Khalil Ahmed Maitlo,
DeputyProsecutor
Prosecutor General
Date of
hearing: 29.08.2022
Dated of
order:
29.08.2022
O R D E R
Shamsuddin Abbasi,
J: I intend to
dispose of B.A.No.S-338/2022 filed by applicant Zaheer Ahmed for pre-arrest
bail and B.A.No. S-345/2022, filed
by applicants Muhammad Waqas @ Waqas Ali
and Zubair Ahmed for post-arrest bail in Crime No.150/2021, registered at
Police Station Rohri, District Sukkur, for offence punishable under sections 365-B,
452, 147, 148, 149 PPC and 3/4 of Child Marriage Restraint Act, 2013.
2. Brief
facts of the prosecution case are that on 22.09.2021, complainant Aijaz Ali
appeared at P.S Rohri and lodged F.I.R by stating there in that on 20.09.2021
at about 6:00 A.M, when he was available in his house along with prosecution
witnesses, applicant Waqas alongwith 4 other co-accused entered into the house
of complainant and on the point of weapons abducted complainant’s daughter Mst.
Naheed with intention to commit Zina with her.
3. It is contended by learned counsel for the applicants
that there is delay of two days in lodgment of FIR without plausible
explanation; that applicant Muhammad Waqas has contracted marriage with alleged
abductee Mst. Naheed on 21.09.202, he has produced affidavit of free-will as
well as application u/s 22-A & B, Cr. P.C filed by Mst. Naheed and applicant
Muhammad Waqas before Ex-officio Justice of Peace for protection; that
statement u/s 164 Cr.P.C of alleged abductee has been recorded by concerned
Magistrate wherein she has categorically stated that neither she has been
abducted nor enticed by anyone to marry with Waqas and she has left her
house by exercising her right of free
will; that police has inserted section 3/4 of Sindh Child Marriage Restraint
Act 2013 which is punishable only for three years; that there are sufficient grounds
which require further enquiry in terms of section 497(2) Cr.P.C.
4. On
the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the
complainant has contended that the names of applicants/accused have appeared in
the FIR; that alleged offence is heinous one and against the society and
offence comes within prohibitory clause of section 497 Cr.P.C; that during
investigation statement of alleged abductee was recorded wherein she has
supported the case of prosecution; that it has come on record that alleged
abductee is tender age, therefore police inserted section 3/4 of Sindh Child
Marriage Restraint Act 2013 in the challan; that the applicants are not
entitled for grant of bail.
5. Heard learned
counsel for the applicants, learned counsel for complainant and learned Deputy
Prosecutor General as well as perused the material available on record.
6. Admittedly
there is delay of two days in lodgment of FIR without plausible explanation and
in background of enmity it cannot be ruled out that FIR has been lodged after
due deliberation and consultation. It is matter of record that before
registration of FIR alleged abductee has entered into Nikkah with main accused Muhammad
Waqas on 21.09.2021` and on the same day she has also sworn her affidavit of
free-will and thereafter, Mst Naheed and applicant Waqas have approached to
Ex-Officio Justice of peace and filed application u/s 22 A/B Cr.P.C. for
protection. It is also matter of record that during investigation alleged
abductee Mst. Naheed has appeared before concerned Magistrate whereby her
statement u/s 164 Cr.P.C was record wherein she has categorically denied the
allegation of abducted and stated that she contracted marriage by exercising her
right of free-will and she further stated that complainant has lodged false
F.I.R against her husband. It is case of prosecution that alleged abductee has
taken summersault and recorded her diversion statement and implicated applicant
Muhammad Waqas in the commission of offence. In such a situation this is a
clear case of two versions which requires further enquiry in terms of section 497(2) Cr.P.C. Therefore, I am allowing bail application of
applicants Muhammad Waqas @ Waqas Ali and Zubair Ahmed by admitting them to
bail subject to furnishing solvent surety in the sum of Rs.100,000/- (rupees
one lac) each and PR bond in the like amount to the satisfaction of learned
trial court. As far case of applicant Zaheer Ahmed is concerned, his pre-arrest
bail was not decided on merits by
learned trial court and it was dismissed in non-prosecution, therefore his pre-arrest
bail application is converted into protective bail for seven days from today in
terms of earlier order dated 07.07.2022. Learned trial court is directed to
decide the application of applicant Zaheer Ahmed on merit without influence of
earlier order.
7. The
observations made hereinabove are tentative in nature and would not prejudice
the case of any party at the trial.
8. Office is
directed to place a signed copy of this order in the captioned connected bail
application.
J U D G E
Suleman Khan/PA