ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Cr. Bail. Appl. No. S- 741 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
16.12.2009
Applicant produced in custody.
Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for the State.
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Ahmed Ali Shaikh J: The applicant Achar S/o Usman seeks post arrest bail in crime No.58/2009 of Police Station Matiari for the offence punishable u/s 365-B PPC.
2. A bail Application of the present applicant was dismissed by the learned IIIrd Additional Sessions Judge, Hyderabad vide order dated 12.10.2009. From the perusal of the order, it is clear that the learned trial court has passed the order in mechanical manner without applying his judicial mind. The impugned order further reveals that on 12.10.2009 when the impugned order was passed, the counsel for the applicant was called absent without intimation. An opportunity of arguments was given to the applicant but per learned trial Judge, the applicant did not avail such opportunity, therefore, his bail application was dismissed. Since the applicant is an illiterate person and does not aware about the law, therefore, instead on such flimsy ground, the trial court ought to have passed the order on merits and on the basis of material available on record but he instead of taking into consideration such material adopted his own way, which is not proper and cannot be appreciated.
3. The facts of the prosecution case as disclosed in the F.I.R. under crime No.58/2009 are that on 25.07.2009 one Pervez Memon approached the police and registered the case stating therein that on 08.07.2009 at 0500 hours, he alongwith other family members woke up on the knocking, where he, his brother in law Shabir Ahmed Shaikh and other inmates of the house saw accused 1. Hafeezullah @ Fijoo 2. Muhammad Ali @ Bado 3. Achar 4. Azizullah 5. Jameel Ahmed and 6. Shahnil Memon duly armed with pisrtols barged in his house. After issuing threats to the complainant, accused Hafeezullah and Muhammad Ali dragged out his sisters Mst. Salma and Mst. Kubra respectively by holding their arms and got boarded them in a white colour carry vehicle. They issued threats for dire consequences to the complainant. Due to fear the complainant party remained mum. Thereafter accused abducted Mst. Salma and Mst. Kubra with intention to commit zina with them. At morning hours, complainant made complaint to the Nek Mards of the vicinity, who kept them on hopes that there would be settlement but till date nobody paid any heed.
4. During investigation, present applicant was arrested on 28.07.2009 and subsequently he was sent up to face the charge vide challan submitted on 12.08.2009.
5. I have heard applicant in person who is produced in custody and perused the papers with the able assistance of Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for State.
6. The applicant contended that he is innocent and has been falsely implicated in the present case and that he has nothing to do with the commission of alleged offence.
7. Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for State opposed the bail plea of the applicant and stated that the applicant is nominated in the F.I.R. with an specific role, therefore, he is not entitled for concession of bail at this stage.
8. From the plain reading of the F.I.R. it appears that six persons including present applicant have abducted Mst. Salma and Mst. Kubra with intention to commit zina. The applicant has submitted copy of Nikahnama of Mst. Kubra (one of the abductee) with co-accused Hafizullah in which the date of marriage has been mentioned as 16.07.2009, whereas the F.I.R. has been registered on 25.07.2009. A copy of Habeas Corpus Petition No.60/1999 has been placed on record, which reveals that co-accused Hafeezullah had filed the above said petition for the recovery of Mst. Kubra before learned Sessions Judge Karachi Central, in which the complainant Pervez had been implicated as one of the respondents. During proceedings the above said application the statement of Mst. Kubra was recorded by learned Sessions Judge Karachi Central in which Mst. Kubra has stated under;-
“I am a major and have married with Hafeezullah on 16.07.2009. The Nikahnama has been solemnized at Khanpur District Raheem Yar Khan. I am neither been abducted by the petitioner nor have been detained or compelled for marry. I desire to go with my husband”.
9. Keeping in view the above statement of Mst. Kubra, learned Sessions judge Karachi Central has disposed of the above petition vide order dated 08.08.2009 in following terms:-
“In view of the above statement of Mst. Kubra, she is set at liberty to go with her husband. The application u/s 491 Cr.P.C stands disposed of”
10. I have gone through the order dated 16.11.2009 passed in C.P.No.D-2322/2009 which was filed by co-accused Hafeezullah in which Pervez (complainant) and others have been shown as respondents. In above petition Mst. Kubra was appeared before High Court of Sindh, where she has stated that she was never married with petitioner and infact the petitioner and one Shabir Ahmed Shaikh had abducted Mst. Kubra and her sister Mst. Salma, however, both the abductees ultimately succeeded to escape from the clutches of accused and sought shelter in Mohatarma Benazir Bhutto Women Centre Hyderabad. In view of the above circumstances, the above petition was disposed of with the directions to the petitioner to resort to proper legal remedy. From the version of Mst. Kubra, it appears that she has never implicated the present applicant for commission of offence but interestingly she has implicated Shabir Ahmed Shaikh as one of the culprit but she did not disclose the name of present applicant, whereas in the F.I.R. said Shabir Ahmed Shaikh has been shown as eyewitness of the alleged occurrence. Even otherwise there are inconsistent versions of Mst. Kubra as in her earlier statement/ deposition dated 08.08.2009 in Habeas Corps application No.60/2009 she has categorically stated that she was married with Hafeezullah on 16.07.2009 and neither she was abducted by Hafeezullah nor detained or compelled for marriage and she shown her desire to go with her husband namely Hafeezullah. A memo of plaint of Family Suit No.189/2009 has also been placed on record, which was filed by Mst. Salma, one of the abductees against Shabir Ahmed Shaikh for dissolution of marriage in the court of Senior Civil/Family Judge Nawabshah on 03.08.2009. It is very strange that on the one hand, Shabir Ahmed Shaikh has been cited as eyewitness of the alleged occurrence and on the other hand Mst. Salma daughter of the complainant (one of the abducttee) has alleged that she had been driven out by her husband Shabir Ahmed Shaikh and a great hatred has developed in her mind against her husband. Such aspect of the case creates doubt about truthfulness of the prosecution version, hence no sanctity can be attached to the prosecution story. The conflicting versions of Mst. Kubra, one in her examination in chief before Sessions Judge Karachi Central in Habeas Corps application No.60/2009 in which she categorically stated that she has married to co-accused Hafeezullah on her own accord and her subsequent version in C.P.No.D-2322/2009 in which she denied such marriage and alleged that she and her sister Mst. Salma were abducted by Hafeezullah and Shabir Ahmed Shaikh make the case of prosecution doubtful. In view of such conflicting versions even Nikahnama and coy of Family Suit No.189/2009 the case of the applicant falls under sub section (2) of section 497 Cr.P.C and requires further inquiry. Even it has been held by the Honourable Supreme Court in the case of Amir Vs. The State (PLD 1972 SC 277) that for the purpose of bail, law not to be stretched in favour of prosecution. Benefit of doubt if any arising, must go to accused and even bail cannot be withheld as punishment and there is no justification to keep the person behind the bars indefinitely.
11. For the foregoing reasons, I admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.50,000/- and P.R bond in the like amount to the satisfaction of the trial court.
12. The above observations are tentative in nature and will not prejudice the case of either party at the trial.
This Criminal Bail Application stands disposed of.
JUDGE
AKC