ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Bail No.348 of 2011
Date Order with signature of Judge
Date of hearing : 13.10.2011.
Applicant : Kashif Raza
Respondent : The State
Mr. Qurban Ali Malano, Advocate for the Applicant.
Mr. Zulfiqar Ali Jatoi, DPG
M/s Hadi Bux Bhatt and Waheed Ali Samtio, Advocates for the complainant.
Muhammad Ali Mazhar, J.:- This application for bail before arrest has been moved by the applicant in Crime No.42/2011, registered at police station Gambat under sections 365-B, 506/2, 342, 34 PPC.
2. The complainant Ms. Saba Ambareen lodged the FIR as under:-
“The complainant has filed Cr.No.236/2010 on 08.10.2010 against the accused Mazhar Channo, who is in Central Prison, Khairpur. On 03.02.2011 at about 12:30 p.m. the complainant was going to meet her maternal relatives, when accused Gada Hussain Channo and Ashique Hussain Memon kidnapped her on the force of weapons and took her to Central Prison Khaipur in the meantime accused Kashif Hussain Memon got off from the car in the way and when reached at the jail, accused Gada Hussain Channo stood at the gate of the jail and shown her pistol and called upon her to meet with Mazhar Cahnno and given her a police official to take her to Mazhar Cahnno and also issued threats of murder. The complainant being scared went inside the jail where they took her signature on the register and she met with Mazhar Channo, who offered for compromise and marriage, so also to withdraw the case and threatened the complainant that on failure to do so, her brothers and parents will be murdered and they took the complainant to a place of Sarkar Shah and threatened that if the complainant will not make statement before court of law against her parents, she will be murdered and they kept the complainant there for whole night, the complainant was reminded by a police person that if the judge will inquire about anything, the complainant will say that she was in police station whole night. In fact, the police has taken her from the place of Sarkar Shah who compelled her to make statement against her parents before the court. When the complainant reached the court premises, same persons armed with weapons were standing outside the court and the complainant feeling danger to her life as well as of her parents gave her statement. When she was in Darul Aman her brother Manzoor Hussain used to meet her who satisfied the complainant that such accused persons cannot cause loss to them, then on 14.02.2011, she gave statement before the court and along with her brother Manzoor Hussain went to her parents house and then she disclosed aforesaid facts before her parents and brothers Manzoor Hussain and Ashfaque Hussain and then immediately went to the learned Sessions Judge, Kahirpur and obtained order for lodging FIR”.
3. The learned counsel for the applicant argued that the applicant has been falsely implicated in this case. In her statement published in daily Kawish dated 15.2.2011, the complainant has not implicated the present applicant, but later on, she had given name of present applicant in the false FIR. Learned counsel further stated that in her statement published on 15.2.2011, the complainant stated that she was abducted by Gada Hussain and Ashiq and the incident stated to have been occurred on 3.2.2011. Learned counsel further argued that there is at least 15 days delay in lodging of FIR. The allegations against the present applicant are general in nature, hence, the case of applicant requires further inquiry. The learned counsel further argued that co-accused Gada Hussain has been granted bail by the Additional Sessions Judge, Gambat in the same crime number on 8.6.2011, while the interim bail granted to the present applicant was recalled vide order dated 9.3.2011.
4. The learned counsel for the complainant argued that on 14.2.2011 statement of the complainant under section 164 Cr.P.C. was recorded by the Civil Judge/Judicial Magistrate-II, Gambat in which she has clearly stated that she was abducted by the accused persons including the present applicant, therefore, the applicant is not entitled to be released on bail. It is clear from the prosecution case that he has committed the offence under section 365-B, 506/2, 342 & 34 PPC.
5. The learned A.P.G. has also opposed the bail application and argued that since the applicant has been nominated in the FIR with specific role, therefore, he is not entitled for the concession of bail. He further argued that prima facie the applicant is involved in the case of abduction of the complainant and the trial court has rightly rejected his bail application.
6. It is an admitted fact that the offence allegedly committed on 3.2.2011 and the FIR was registered on 19-2-2011 per direction of Justice of Peace. In fact, this is a case of two statements recorded under Section 164 Cr.P.C. The first statement of the complainant was recorded on 4.2.2011 by the Civil Judge/Judicial Magistrate-II Gambat in which the complainant Mst.Saba Ambreen clearly stated that she was not abducted by anyone and she also requested the court to remand her Darul Aman. This statement was recorded in the same crime number. On 14.2.2011, before the court another statement was recorded in which the names of applicant and co-accused Gada Hussain were implicated by the complainant and stated that these persons have abducted her on 3.2.2011. So at present there are two statements of the same complainant recorded under section 164 Cr.P.C. and at this stage, it cannot be said which of the statement was recorded under force and compulsion, therefore, the case of present applicant requires further enquiry.
7. In the FIR, complainant has stated that accused Gada Hussain and Ashiq Husain kidnapped her on force of weapons and took her to Central Prison, Khairpur. Meantime, Kashif dropped from the car in the way and when they reached at Jail, accused Gada Hussain stood at the gate of Jail and shown pistol to the complainant and given her a police person to take her to Mazhar Channo. The complainant being scared went inside the Jail where her signature was taken on the register and she met with Mazhar Channo, who offered for compromise. It is astonishing to note that the complainant never made any complaint to the jail authorities regarding any threat of dire consequences when she allegedly went to meet Mazhar Channo.
8. Keeping in view the facts and circumstances, I am of the tentative view that the possibility of false involvement of the present applicant cannot be ruled out, particularly in the circumstances, where two statements of the same complainant recorded under section 164 Cr.P.C. are available on record, one is in the favour of the accused persons and second statement is against them. So it is to be determined during trial which statement was recorded according to wishes of the complainant and which statement was recorded by force and compulsion. It is also a fact that in the same FIR, co-accused Gada Hussain against whom the allegation is more or less same has been granted bail in the same crime. A basic concept of bail is that no innocent person’s liberty is to be curtailed, until and unless proved otherwise. Pre-arrest bail can be extended to a person who does not prima facie appear to have committed for non-bailable offence or there is room for further probe into his guilt within the meaning of section 497(2) Cr.P.C. From the material placed before the court, if it tentatively appears to be a case with reasonable doubt, then in such a matter a court may extend the concession of a pre-arrest bail to the accused.
9. The FIR has been lodged under section 365-B, 506/2, 342 and 34 PPC. So far as section 342 is concerned, it pertains to punishment for wrongful confinement, which is bailable offence, while section 506/2 is a matter of further inquiry, whether any threat was issued to cause death or grievous hurt. While Section 365-B PPC pertains to kidnapping, abducting or inducing woman to compel for marriage etc., but again there is no allegation that the complainant was forced or seduced to illicit intercourse. So far as the allegation of kidnapping is concerned, the first statement recorded under section 164 Cr.P.C favors the accused and whether it was recorded by force or with consent of the complainant, this can only be proved or thrashed out during trial but at this stage it is a case of further inquiry and there are no reasonable grounds to believe that the applicant has committed any non-bailable offence.
10. The applicant was granted pre-arrest interim bail by this Court on 18.4.2011 subject to furnishing solvent surety in the sum of Rs.200,000/- and P.R. bond in the like amount, which is hereby confirmed on the same terms and condition. The observations made in this order are tentative in nature and will not prejudice the case of either party.
Sukkur Judge
Dated. 21.11.2011