ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 592 of 2010.
Date Order with signature of Judge |
For Hearing. 15-07-2010. |
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Present before: Ahmed Ali M. Shaikh, J
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Mr. Malik Muhammad Naeem learned counsel for applicant |
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Mr. Abdullah Rajput learned A.P.G for the State alongwith complainant/victum Mst. Zubaida d/o Muhammad Mirza
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Date of hearing:
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15-07-2010 |
Applicant |
Muhammad Nadeem @ bhola |
Respondent |
The State |
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AHMED ALI M. SHAIKH, J: Through this bail application the applicant Muhammad Nadeem @ Bhola seeks post arrest bail in crime No. 42/2010 of police station Saudabad Karachi registered U/Ss: 365,-B/366/376/109/34 P.P.C. The applicant approached the trial Court but his bail plea was turned down by III-Additional Sessions Judge Karachi (East).
Brief facts of the prosecution case are that on 27.01.2010 Mst. Zubeda daughter of Muhammad Mirza lodged the report stating therein that she is residing with her parents. On 03.01.2010 when her parents were gone at their jobs, she left the house and went to Liaquat Market for purchasing the vegetables, where Saleem, Nadeem @ Bhola and lady namely Pathani who is sister in law of Nadeem came and told her that her mother has received injuries in a road accident at Sohrab Goth. Since the above persons belonged to her community, therefore, she accompanied them in a taxi and went to Sohrab Goth, where Mst. Rehmat Bibi was also present, she further alleged that she was served with a cup of tea and after taking such she went un-conscious later on she came to know that she was at Sadiqabad. She was confined in a room, where she was raped by accused Nadeem @ Bhola. Due to such mental agony she tried to commit suicide but she was saved. Later on she was taken to Khanewal, where she stayed in a village for a day ultimately she was brought at Karachi by Shero, Saleem and Mst. Reshma, where she was confined in the house of Bashir Ahmed. After some hours she was maltreated by Rehmat Bibi, Majo, Sher, Saleem, Niaz Muhammad, Bashir Ahmed and Reshma and she was compelled to declare before her parents that she had gone with Nadeem @ Bhola on her own will. Meanwhile accused Rehmat Bibi and Bashir obtained her thumb impression on some papers and also issued threats that in case she would appraise the facts to any one she would not be spared. However on 22.01.2010, the accused sent her to her parents’ house by the people of her community.
It is interalia contended that there is delay of 24 days in lodging the F.I.R. Per learned counsel, the victim has contracted the marriage with the applicant on her own accord. In support of his contentions, he has submitted the copy of free will of the victim and Nikahnama with the applicant. Learned counsel further contended that the complainant has filed a suit for jactitation of marriage in the court of Family Judge Karachi (East). Learned counsel lastly contended that in view of the Nikahnama and free will of the victim, the case of the applicant requires further inquiry as it is yet to be determined by the Family Court that whether the marriage of the victim with the applicant is valid or otherwise. In support of his contentions, the learned counsel has relied upon the case of Muhammad Arshad and another V/s The State (2007 P.Cr.L.J 1455) and Muhammad Asif @ Kala V/s The State (2007 P.Cr.L.J 1292).
Conversely Mr. Abdullah Rajput learned A.P.G for the State contended that in the like cases delay is natural phenomenon as in like wise cases people used to avoid to report the matter and try to get recover the girl through the elders of their community in order to save the reputation of their family. He further contended that no enmity has been alleged by the applicant with the complainant party. He further submitted that applicant has been nominated in the F.I.R as well as in statement U/s 164 Cr.P.C of the victim. He lastly contended that the offence falls with the prohibitory clause of section 497(i) Cr.P.C, therefore, the applicant does not deserve the concession of bail.
The complainant Mst. Zubaida stated that the applicant has destroyed her life as she was abducted and raped by the applicant.
Heard the learned counsel for the parties and complainant in person.
Though the date of occurrence has been shown as 03.01.2010 and F.I.R was lodged on 27.01.2010, but in like cases where a virgin girl has been abducted by her relatives naturally the parents used to recover the girl through the elders of their community and they are reluctant to lodge the report with the police with sole object to save the honour of their family. The complainant an un-married girl was abducted by the accused, she was wrongfully confined and not only this but she was raped by the present applicant. The allegations leveled in the F.I.R are corroborated by statement U/s 164 Cr.P.C of the victim. Moreover she has filed her suit for jactitation of marriage which is pending before the Court of Family Judge, where the applicant has also filed his written statement in the above suit. The genuineness of the Nikahnama and the validity of the marriage can not be determined in the criminal proceedings and only the Family Court is proper forum for deciding these issues. So for the law relied upon by the learned counsel is concerned, the same is not applicable to the case in hand as the facts of those cases are quit different and distinguishable. The case of Muhammad Asif alia Kala (Supra), where the victim was a married girl and report of chemical examiner was in negative and the co-accused Muhammad Nasir Abbas was granted bail by Honourable High Court. In the case of Muhammad Arshad (Supra), the applicants were granted bail on the ground that since they are behind the bars and by keeping them in jail they can not be excepted to file suit in the family Court and obtain verdict with regard to their marriage with the abductees. Whereas in the case in hand, the complainant has filed family suit No. 605/2010 in the Court of XX Family Judge Karachi (East) and the applicant has filed the written statement through his advocate which prima facie shows that he is contesting the family suit duly represented by the counsel. There is another aspect of the case that the complainant who is young girl was abducted and her life has been ruined by the applicant by committing Zina with her. The medical evidence also corroborates the prosecution version. There is sufficient material in the shape of F.I.R and statement U/s 164 Cr.P.C of the victim as well as medical evidence which prima facie shows that the applicant is involved in the above offence. For the foregoing reasons, I do not find any force in the contentions of learned counsel as the bail application is devoid of merit and same is accordingly dismissed.
JUDGE
ABDUL SALAM P.A