ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

 

                                                Cr.Bail.Appl.No.S-  258   of   2012

                                                                                                                                                                                               

DATE        ORDER WITH SIGNATURE OF JUDGE

 

21.08.2013.

 

 

Mr. Muhammad Hashim Leghari, Advocate a/w applicants.

Mr. Shahid Shaikh, A.P.G. for the State.

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            This is an application for bail before arrest pursuant to the offence registered u/s 365-B, 506(ii), 376(2), 337-J, 344, 34 PPC on 15.04.2012 with regard to the incident dated 29.01.2012.

2.         It is contended by learned counsel for the applicants that one of the accused namely Tahseen Yaqoob was married with alleged abductee Mst. Samreen Sana, whereafter on account of threats, the alleged accused Tahseen Yaqoob and Mst. Samreen Sana filed a C.P.No.D-365/2012 and obtained ad-interim order on 22nd February 2012 as under:-

“It is contended by the learned counsel for the petitioners that the petitioners have contracted marriage on 19.01.2012, Photostat copies of Nikahnama and affidavit of free will executed by the petitioner No.1 are annexed as Annexure-A & B. Petitioner No.1 in her affidavit of free will categorically stated that she has not been abducted or kidnapped. She in her affidavit further stated that she has decided to marry with petitioner No.2 with her own free will and choice without any pressure or coercion. It is further contended by the counsel for the petitioners that the relatives of the petitioner No.1 are not happy with her marriage therefore, they have declared the petitioners as KARO KARI and are advancing threats of dire consequences to kill the petitioners and involve them in criminal cases.

            Issue notice to the respondents as well as Additional Advocate General Sindh for 29.03.2012. The respondents No.4 & 5 are directed not to take any coercive action against the petitioners and close family members of petitioner No.2 and in case any F.I.R. is registered, no arrest be made of the nominated accused persons till the next date of hearing.”

 

3.         The case of the applicants is that instant FIR was registered on 15.04.2012 after a delay of about 2 ˝ months and that Mst. Samreen Sana has solemnized marriage after execution of free will. It is contended that she appeared before the Division Bench of this Court in C.P.No.D-365/2012 where she has categorically stated that she has solemnized Nikah on account of her own free will. It is noticeable that this order was obtained without notice to respondent and in the absence of father of abductee.

4.         The contents of the FIR reveals that she was taken to a Clinic where she found her brother and father and she went running after them and the alleged accused Tahseen Yaqoob and others then ran away from the scene. It appears from the record that soon after she was recovered, she filed an application before the Division Bench in C.P.No.D-365/2012 wherein she stated that she was forced to file the petition and she was forced to marry one of the applicants/accused namely Tahseen Yaqoob. The Division Bench of this Court was pleased to pass order on 03rd April 2012 where she was directed to approach the proper forum for redressal of her grievance in accordance with law and the petitioner was set at liberty to go alongwith her parents who were present on that day.

5.         Learned counsel for the applicants submits that there are contradictions which entitle the applicants for grant of pre-arrest bail. He further submitted that she executed her free will and the suit for jactitation of marriage filed by the victim Mst. Samreen was also dismissed as she could not prove that she was forcibly married with applicant/accused Tahseen Yaqoob. It is informed that she has also filed a suit bearing No.24/2012 for dissolution of marriage prior to the decision of suit for jactitation of marriage which is pending adjudication.

6.         On the other hand, learned A.P.G. submits that both the offences i.e. offence of abduction and the forcible marriage are two different and distinct offences and only on account of the fact that she could not prove the factum of forcible marriage, the case of abduction could not be decided. Learned State Counsel further submits that assertion of the applicants’ counsel that she has given the subsequent statement before the Division Bench of this Court that she was forced to file the petition was also not confidence inspiring as the factum of filing of petition could also be a subject of coercion and influence which cannot be ruled out. Learned A.P.G. relied upon the medical report in terms whereof it is opined by the Medical Officer that Mst. Samreen was pregnant.

7.         I have heard the learned counsel and perused the record.

8.         It is a matter of fact that one Tehseen and abductee Mst. Samreen filed a writ petition bearing No. C. P. No.D-365/2012 and was able to obtain ad-interim orders on 22nd February 2012. On that day no one on behalf of the respondents was in attendance. Tentatively it cannot be ascertained as to whether she appeared on 22nd February 2012 on account of her own free will. The contents of the FIR reveals offences beyond forced marriage that she was under coercion and maltreatment and then she filed writ petition and was asked to appear before the Division Bench of this Court for obtaining ad-interim order. The allegations in FIR are in consonance with the statement of abductee recorded u/s 161 Cr.P.C. where she has leveled allegations against the applicants/accused that she was subjected to maltreatment and she was intoxicated and she remained under the custody of accused/applicants where Zina was committed with her. The tentative question before me is not only the question of forcible marriage but also the allegation that has been raised in the instant FIR which is supported by her statement u/s 161 Cr.P.C. The case of jactitation of marriage involves only a question as to whether she was able to prove that she was forcibly married to one of the accused namely Tahseen Yaqoob. Rest of the accusations in respect of offences which are alleged to have been committed by the applicants are not the subject matter of the suit for jactitation of marriage. No doubt the applicants have pointed two versions of her statement regarding forcible marriage as her earlier statement when she appeared before the Division Bench of this Court and obtained ad-interim order and subsequently when she filed an application that she was forced to file the writ petition. However, this fact carries weight that earlier statement of the abductee was subject to influence or coercion of the applicants/accused, more importantly when she remained untraceable since 19.01.2012 and suddenly when she discovered her father and brother she screamed and ran after them. Had it been a case of marriage on account of free will there was no reason for abductee to remain untraceable more importantly when she obtained order from a Division Bench of this Court on 22.02.2012 in C.P.No.D-365/2012. It is important to note that no case of previous enmity was argued by applicants / accused.

9.         In view of the above, I am of the view that the applicants have not made out a case for grant of pre-arrest bail. Consequently I dismiss the bail application and the order dated 16.04.2012, whereby the applicants were granted interim pre-arrest bail is hereby recalled.         

 

 

                                                                                                            JUDGE

 

                                                           

 

                                                                       

Tufail