ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No.  S- 208 of 2013.

Date of hearing

Order with signature of Judge

03.09.2013.

1. For orders on office objection.

2. For hearing.

Mr. Mian Mumtaz Rabbani, Advocate for the applicant.

Mr. Sikander Ali Shah, Advocate for complainant.

Miss. Shazia, State Counsel.

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Abdul Maalik Gaddi, J:     The applicant Ghulam Nabi alias Gula seeks post arrest bail in Crime No.106/2013, of P.S A-Section Kandhkot, for offences under Sections 365-B, 376, 371-A, 371-B and 344 P.P.C.  

2.         Brief facts of the prosecution case as per F.I.R lodged by complainant Mst. Yasmeen are that on 23.4.2012, while she was going to house of her maternal uncle Ghulam Yasin, when at about 2.00 p.m. she reached near house of Ghulam Yasin; meantime one car of white colour appeared from northern side, in which three persons duly armed with T.T pistols were sitting. Complainant identified one of them as Ghulam Fareed and two persons were not known to her. It is stated in the F.I.R that accused persons forcibly kidnapped the complainant in the car and took away her towards Guddu, at some unknown place. Unidentified culprits disclosed their names to be Muhammad Nawab Sabzoi and Muhammad Nawaz Suhandro and accused used to commit Zina with complainant. It is further alleged that, on 24.4.2012, accused Ghulam Fareed brought one forged Nikahnama and asked complainant to put her RTI, who refused whereupon accused took out pistol and stated that in case she would not put RTI on the Nikahnama, she would be murdered, hence complainant due to fear of her life put her RTI on Nikahnama. Complainant has further alleged in the F.I.R that on 26.4.2012, all three accused took complainant on gun point in a car and produced her before Court of Additional Sessions Judge, Saddiq-abad, where an application was filed, thereafter, the accused got her stayed in Saddiq-abad. Accused Ghulam Nabi alias Gula and Abdul Khalique alias Khalid also came there; accused Ghulam Fareed received cash amount from Mohammad Nawaz Sabzoi, Mohammad Nawaz Suhandro and Ghulam Nabi and they used to commit Zina with complainant. Complainant has further alleged that on 28.8.2012, the accused produced her on gunpoint before High Court of Sindh, Sukkur bench and pressurized her to give statement to the effect that she has performed Nikah with accused Ghulam Fareed out of her freewill else she would be murdered; hence due to fear of her life she made such statement; thereafter accused Ghulam Fareed, Muhammad Nawaz Suhandro and Muhammad Nawaz Sabzoi brought the complainant at Karachi and got her stayed in Bhitai-abad in house of one Rehmatullah, where Ghulam Fareed and Rehmatullah snatched gold ear-rings weighing half tola and silver bangles weighing 15 tolas. It is further alleged that accused Ghulam Fareed after receiving some amount handed over her custody to accused Rehmatullah, who also used to commit Zina with her. All the four accused were committing Zina with her for about one and half months. The complainant has further stated in the F.I.R that about four months prior to lodging of the F.I.R, she was taken from Karachi to the house of accused Mohammad Nawaz Sabzoi situated in village Shahlo, where Ghulam Nabi (present applicant), Mohammad Nawaz and two unidentified culprits used to commit Zina with her;  thereafter her father filed application before the Court of law regarding illegal confinement and on the order of the Court raid was conducted at the house of accused Mohammad Nawaz Sabzoi from where she was recovered. Thereafter, she went to police station and lodged F.I.R on 19.4.2013.

3.         Heard the learned counsel for the applicant, learned Advocate for complainant and learned State Counsel and also gone through the material available on record.

4.         The learned counsel for the applicant contended that the case against the applicant is false and has been registered due to enmity. According to learned counsel, complainant on her freewill had contracted marriage with co-accused Ghulam Fareed and such Nikahnama was prepared. He further argued that complainant had also appeared before High Court of Sindh, bench at Sukkur, where she had stated that she has contracted marriage with co-accused Ghulam Fareed and on the basis of such statement the High Court was pleased to issue directions for disposal of the case/crime No.108/2012. Learned counsel further argued that case has been challaned and the applicant is no more required for investigation; as such he has prayed for grant of bail to the applicant. Learned advocate for the applicant in support of his arguments has not cited any case law.

5.         On the other hand learned State Counsel assisted by Advocate for the complainant vehemently opposed grant of bail to the applicant on the grounds that his name transpires in the F.I.R with direct allegation of committing Zina with the complainant; the delay in lodging the F.I.R has been explained plausibly; prosecution witnesses in their statements recorded under Section 161 Cr.P.C. have fully supported case of the prosecution and have implicated the applicant in commission of the offence, which falls within prohibitory clause of Section 497 Cr.P.C.

6.          Perusal of record shows that the name of applicant is appearing in the F.I.R; there is direct allegation against him that he and co-accused used to reside with the abductee/complainant at Saddiq-abad and Karachi, where they used to commit Zina with her. So far the contention of learned counsel for applicant that complainant has given statement before High Court of Sindh bench at Sukkur, stating that she on her freewill contracted marriage with Ghulam Fareed is concerned, it is an admitted position that right from the date of abduction the complainant was in custody of the accused persons and as per F.I.R she had given such statement due to fear of her life, as accused had pressurized her to do so, thus at this stage when complainant herself has explained reasons for making statement, therefore, such statement of the complainant is not sole ground for grant of bail to the applicant. Not only this, the prosecution version is also corroborated by medical evidence. Delay in lodging the F.I.R has also been explained by the complainant because complainant was in illegal confinement of accused  as such the situation was beyond her control. Learned advocate for the applicant/accused has contended that there is delay in lodging of F.I.R  for which  the benefit of doubt is to be given to the applicant.  In this regard I  may mention here that only delay in lodging of F.I.R in such cases is not fatal to the prosecution case, as the people naturally  avoid  rushing to the police station in the first instance because of family honour.  In this connection I am supported with case law reported in 2007 P.Cr.L.J  649.   I am also  supported with the case   law reported in 2013 P.Cr.L.J 316 and so also case law reported in                   2012 M.L.D 579.

 7.        There is nothing on record to show either from the side of complainant or the police any element and malafide against applicant/accused which is a principle sine qua non for grant of post arrest bail to an accused. The offence with which the applicant is charged appears to be of heinous nature and falls within prohibitory clause of Section 497 Cr.P.C. In the circumstances, I see no reason for grant of bail to the applicant/accused. Resultantly, the instant bail application stands dismissed. However, under the circumstances,  it is expected that the learned trial Court to decide the case as soon as possible preferably within the period of three months from receipt of this order and at-least to examine the complainant and thereafter, the applicant will be at liberty to repeat his fresh bail application, if he so desire.

8.         Before parting with this order, I would like to make it clear that any observation made hereinabove shall not effect merits of the case at trial.

Judge