IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Bail Appln. No. S-395 of 2021
Applicant: Zulfiqar Ali son of Fida Hussain Abbasi,
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Abdul Karim Channo (absent)
State: Through Mr. Aitbar Ali Bullo, D.P.G a/w Inspector Allah Warayo
Date of hearing: 07-10-2021
Date of Decision: 07-10-2021
O R D E R
ABDUL MOBEEN LAKHO, J.- Through this application, applicant Zulfiqar Ali son of Fida Hussain Abbasi is seeking his admission to post-arrest bail in Crime No.105/2020 of Police Station Ratodero, registered for offences punishable under Sections 376/2, 509,342,506/2,34 P.P.C. Earlier, bail plea of the applicant was declined by learned IV-Additional Sessions Judge, Larkana, vide order dated 21.08.2021.
2. The Facts of the case are that, complainant Abdul Karim Channo lodged the F.I.R with Police Station Ratodero on 07.08.2020 in respect of an incident which took place 3 years ago. It was alleged that on the day of incident, complainant alongwith his brother Abdul Rasheed and father-in-law Muhammad Urs was present in the house, when complainant’s daughter namely Mst. Nazia W/o Rizwan Ali Chano told them that about three years back she went to hear Majlis and when reached in street, where three persons were distributing the “Sabeel”, two of them were identified by her to be Sabir Ali, Zulfiqar Ali a/w one unknown person, who gave her “Sabeel” and when she drank, she went unconscious and thereafter found herself in a room, where saw that accused Sabir Ali was committing Zina with her, whereas applicant/accused Zulfiqar Ali was recording video through mobile phone and third person was having pistol, they beaten her and issued her murderous threats and further asked that if she will not meet with them again, they will share her pictures and videos on social media and after her marriage, accused by making fake I.Ds have shared her video on social media, hence the complainant lodged the above F.I.R.
3. Learned counsel for applicant/accused contended that applicant/accused is innocent and has been falsely implicated in this case; that there is delay of about 03 years in lodgment of FIR, which has not been explained properly, that FIR and statement of alleged victim U/S 164 Cr.P.C are contradictory with each other. He further submits that the complainant and P.Ws have exonerated the applicant vide affidavits attached with this application. He further argued that applicant/accused has no nexus with the alleged offence but he has been targeted due to enmity with malafide intention. In support of his contentions, he has relied upon the case laws reported as Muhammad Hayat and others versus The STATE (1988 SCMR 474), Muhammad Nawaz alias Najja versus The STATE (1991 SCMR 111), Zafar Iqbal versus The STATE (PLD 2004 Karachi 566) and Muhammad Najeeb versus The STATE (2009 SCMR 448). In the end he has submitted that the case against applicant/accused requires further enquiry, therefore, he has prayed for grant of post-arrest bail to the applicant/accused.
4. On the other hand, learned Deputy Prosecutor General has strongly opposed the grant of bail stating that applicant/ accused is nominated in FIR with specific role of recording obscene video of the victim, so also PWs in their 161 Cr.P.C statements have implicated him with the commission of alleged offence. He further argued that admittedly accused persons had committed the heinous offence with alleged victim three years prior of lodgment of FIR but due to honour and modesty, she did not disclose the matter initially to anyone but when accused shared her video on social media, which made the honour to girl and her family at stake, thus she disclosed the facts to her elders, therefore they lodged the FIR. He further contended that from the possession of applicant/accused the mobile phone has been secured, in which alleged video is said to have been recorded, which connects the applicant/accused being guilty of alleged offence. In last he prayed for rejection of bail application.
5. I have considered the submissions of learned counsel for the applicant and learned D.P.G. and have gone through the material available on the record and the police file with their able assistance.
6. Perusal of F.I.R shows that it has been lodged after the delay of about 03 years, which has not been explained properly, that FIR and statements of alleged victim U/S 164 Cr.P.C are contradictory with each other which does not attract to the prudent mind as to why accused would remain mum for three years and after marriage of alleged victim, he shared video on social media, if at all there was intention of accused to have caused her loss, he would have shared the video prior to her marriage. Furthermore the victim girl was also mum for three years prior to sharing of obscene videos of alleged zina being committed with her. All the above facts on tentative assessment, make a case of further inquiry which will be dealt with by the trial court at trial.
7. Furthermore, initially the complainant has nominated the present applicant/accused in the F.I.R as an accused with specific role of committing zina and also recording video but later on through affidavit he stated that he is satisfied with regard to the innocence of the applicant and has also submitted an affidavit in court but the learned trial court did not consider this aspect of the matter. It is matter of record that complainant Abdul Karim and two prosecution witnesses, namely, Abdul Rasheed and Muhammad Urs have resiled from their 161 Cr.P.C statements and filed their affidavits in which they have exonerated the applicant from commission of alleged offence. Even the alleged abductee Mst. Nazia in her affidavit has also not identified the present accused to be the same, who had recorded her video. For the sake of convenience, the affidavits of complainant, P.Ws and alleged victim are reproduced as under:-
The complainant Abdul Karim in his affidavit has stated as under:-
"That applicant is innocent and he is not involved in the case and he was not amongst the culprits and I had not witnessed this incident and my daughter Mst. Nazia had not disclosed his name to me being one of the culprits.
That as for the video clips etc are concerned, the same are also fictitious and mananged and edited being a camera trick by some unknown person".
P.W Abdul Rasheed in his affidavit has stated as under:-
"That applicant is innocent and he is not involved in the case and he was not amongst the culprits and I had not witnessed this incident and my niece Mst. Nazia had not disclosed his name to me being one of the culprits.
That I had not mentioned the name of present applicant in my 161 Cr.P.C statement as I do not know him and his name was not disclosed to me by my niece Mst. Nazia and the same was mentioned by the police out of suspicion, therefore, I have no objection, if applicant is granted bail.
That as for the video clips etc are concerned, the same are also fictitious and managed and edited being a camera trick by some unknown person".
P.W Muhammad Urs in his affidavit has stated that:-
"That applicant is innocent and he is not involved in the case and he was not amongst the culprits and I had not witnessed this incident and my grand-daughter Mst. Nazia had not disclosed his name to me being one of the culprits.
That I had not mentioned the name of present applicant in my 161 Cr.P.C statement as I do not know him and his name was not disclosed to me by my grand-daughter Mst. Nazia and the same was mentioned by the police out of suspicion, therefore, I have no objection, if applicant is granted bail.
That as for the video clips etc are concerned, the same are also fictitious and managed and edited being a camera trick by some unknown person".
Victim lady Mst. Nazia in her affidavit has stated that:-
"That applicant is innocent and he is not involved in the case and he was not amongst the culprits and I had not disclosed his name to my father Abdul Kareem and P.Ws Abdul Rasheed and Muhammad Urs.
That I had not mentioned the name of present applicant in my 161 Cr.P.C statement as I do not know him and his name was mentioned by the police out of suspicion and poice had told me and tortured me to give his name in 164 Cr.P.C statement, therefore, I have no objection, if applicant is granted bail.
That as for the video clips are concerned, the same are also fictitious and managed and edited being a camera trick by some unknown person".
8. After filing of the affidavits of above named four P.Ws, I am of the view that the applicant was successful in making out a case of further inquiry and in this respect, I am also fortified from the case law reported as Muhammad Najeeb v/s The State (2009 SCMR 448), in which Hon'ble Supreme Court of Pakistan has observed as under:-
"----S. 497---Penal Code (XLV of 1860), S.365/34---Constitution of Pakistan, 1973, Art.185(3)---Bail, grant of---Complainant initially had nominated the accused in the F.I.R., but later on through an affidavit he had expressed his satisfaction with regard to the innocence of the accused and did not want to proceed with the matter---Courts below had failed to consider the said aspect of the matter---Case of accused, thus, was of further inquiry---Accused was admitted to bail accordingly."
9. In the case of Zafar Iqbal versus The STATE (PLD 2004 Karachi 566), our own High Court has held as under:-
"----S. 497---Penal Code (XLV of 1860), Ss. 395/337---Bail, grant of--Affidavit---All the eye-witnesses had exonerated accused by submitting their affidavits in that respect and as per affidavit of complainant matter had been patched up between the parties---Ultimate conviction of accused having become doubtful accused was entitled to bail."
10. All these facts collectively make the case of applicant as one of further enquiry as envisaged under Section 497 (2) Cr.P.C. Moreover deeper appreciation of evidence is not permissible at the stage of bail and the same is to be decided tentatively. From the tentative assessment of material available on record, it appears that the applicants/accused has made out his case for grant of post arrest bail.
11. Accordingly, in view of the above position and circumstances, the applicant was granted post arrest bail upon his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court vide short order dated 07.10.2021; these are reasons for the said short order.
12. Observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.
J U D G E
Abdul Salam/P.A