Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Criminal Bail Application No. 1163 of 2014

Date	Order with signature of Judge

Applicant           : Usman Khan through Mr. Muhammad Hanif Samma,

                                          Advocate.

Respondent      : The State through Mr. Muhammad Iqbal Awan,

                                          Assistant Prosecutor General.

Complainant     : Mst. Nasreen through Mr. Muhammad Mansoor Mir

      and Ms. Asiya Munir, Advocates.

Date of hearing : 25.07.2014.

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NADEEM AKHTAR, J. – This Bail Application has been filed by the applicant / accused under Sections 498 and 498-ACr.P.C. praying that pre-arrest bail be granted to him pending trial in Crime No.181/2014 registered at Police Station Rizvia Society, Karachi Central, under Sections 376 and 506-B P.P.C.

2.         The relevant facts of the case are that an F.I.R. bearing No.181/2014 was lodged on 03.07.2014 at 1500 hours by one Mst. Nasreen W/O Muhammad Akhter (‘the complainant’) with the Police Station Rizvia Society, Karachi Central, against the applicant / accused. The complainant had stated in the F.I.R. that she was residing with her family at the address mentioned therein, that is, House No.1388, Mohalla Bara Bazaar, Golimar, Karachi ; on 28.06.2014, she went to see her married daughter Madiha at the house of her in-laws and returned home around 07:30 p.m. when there was no electricity in her house ; she found her other married daughters Neelam and Amber in her house along with their children, who were sitting at the rooftop of her house ; she went to the rooftop to join them, where she also found her younger daughter Aleeza, aged about 13/14 years ; her married daughters told her that they had found blood on the floor where Aleeza was sitting which was cleaned up by them ; during this conversation, Aleeza went downstairs ; when the complainant asked Aleeza, she told her that Usman (the applicant / accused) who lives in front of their house, called her to his house on the pretext that his wife was calling her upstairs, but when she went upstairs with him she found that his wife was not in the house ; and, after closing her mouth tightly with his hand, Usman forcibly committed “ziadti” with her, and then threatened her with a knife that in case this fact was disclosed by her to anyone in her house, he will kill her and her brothers. It was also stated in the F.I.R. that about 10/12 days back, Usman and the complainant’s son Babar had a quarrel which was resolved because of the intervention of the neighbours, and a report in this behalf was lodged at the police station ; and, Usman had threatened the complainant’s family that he would teach them a lesson. It was further stated in the F.I.R. that the complainant had reported the incident at the police station, and at her request, a “medical letter” was issued whereafter she had Aleeza medically examined at Abbasi Shaheed Hospital ; due to this reason, Usman became angry and started sending people to them to patch up the issue, and at the same time he kept on extending threats to them. It was specifically alleged by the complainant in her F.I.R. that Usman (the applicant / accused) had committed zina-bil-jabr with her daughter Aleeza, aged about 13/14 years, and had also threatened to kill her.

3.         The applicant filed an application seeking bail before arrest bearing No.681/2014 before the learned Sessions Judge, Karachi Central, which was dismissed vide order passed on 04.07.2014 by the learned V^th Additional Sessions Judge, Karachi Central.

4.         Upon dismissal of his said application, the applicant filed the present bail application on 07.07.2014 which came up for orders on the same day before this Court when the applicant was not present. However, taking a lenient view in the matter, no adverse order was passed despite his absence as his counsel stated that he will file an application for exemption of the applicant’s personal appearance. The counsel was directed to join the complainant as a respondent, and at his request, a short date was given with a direction to the office to issue notice to the respondents and the Prosecutor General upon filing of the amended title. On 16.07.2014, the bail application was fixed for hearing when the applicant was once again absent. On that date, an application bearing C.M.A No. 6565/2014 was fixed for orders, which was filed by the applicant seeking interim pre-arrest bail and exemption of his personal appearance before the Court. The said application was vehemently opposed by the complainant’s counsel inter alia on the ground that the applicant was constantly threatening and pressurizing the complainant to withdraw her F.I.R. In reply to this, the applicant’s counsel gave an undertaking that in case interim pre-arrest bail is granted to the applicant, the same may be recalled without notice to him in case of any delay on his part in proceeding with the matter ; and, the applicant shall abstain from visiting the house of the complainant or from extending any type of threats to her and her family members. In view this undertaking, C.M.A No. 6565/2014 filed by the applicant was disposed of vide order dated 16.07.2014 whereby interim pre-arrest bail was granted to the applicant without touching the merits of the case, subject to his furnishing solvent surety in the sum of Rs.200,000.00 with a PR Bond in the like amount to the satisfaction of the Nazir of this Court. The applicant was directed to join the investigation forthwith, and the matter was adjourned for confirmation of bail or otherwise, with a direction to the A.P.G. to produce the police papers.

5.         On 23.07.2014, the complainant’s counsel filed the medical examination report dated 29.06.2014 of Aleeza along with a statement, which were taken on record and copies whereof were received by the applicant’s counsel. As the police papers had not been produced by the A.P.G., the investigating officer was directed to record the statement of Aleeza under Section 161 Cr.P.C. without fail by 24.07.2012, and to appear in person before this Court on 25.07.2014 along with police papers, especially the statement of Aleeza. However, instead of Section 161 Cr.P.C, Section 164 Cr.P.C. was mentioned due to typographical error in the order passed on 23.07.2014.

6.         In compliance of the direction given by this Court, the investigating officer appeared in person on 25.07.2014 along with the police papers. He stated that Aleeza’s statement under Section 161 Cr.P.C. was recorded on 08.07.2014, which was produced by him in original. Her said statement revealed that she had clearly reiterated therein the incident mentioned in the F.I.R. and had specifically implicated the applicant / accused in the following words :

7.         A perusal of the F.I.R. shows that the applicant / accused has been specifically nominated therein with the specific role of committing zina-bil-jabr with Aleeza. In her statement recorded under Section 161Cr.P.C., Aleeza had confirmed the contents of the F.I.R. by fully implicating the applicant / accused and by specifically alleging that he had forcibly committed “ziadti” with her. It is well-settled that in cases of rape, mere statement of the victim is sufficient to connect the accused with the commission of offence, if the statement of victim inspires confidence. Prima facie, the statement of Aleeza does in fact inspire confidence. This view is fortified by the case of Mushtaq Ahmed and another V/S The State, 2007 SCMR 473, decided by the Shariat Appellate Bench of the Honourable Supreme Court. In the said authority, it was further held that “It is not believed or appealed to reason to observe that a sane person would ever like to put at stake his or her family honour as well as career of young unmarried daughter for such petty disputes as alleged by the defense”. I am also of the view that it is unimaginable that the complainant or her daughter Aleeza would dishonor themselves or their family without any sufficient or valid reason, as no girl or her mother would ever dare to even think of concocting a story that may ruin the life of the girl or may result into shame, disgrace, disrepute, degradation, humiliation or embarrassment to the girl and her entire family in the eyes of the society, especially when the girl is young and unmarried. In the case of Rashad V/S The State, 2002 SCMR 1329, since there was direct allegation of zina against the accused, the Honourable Supreme Court held that the accused was not entitled to the concession of bail as the offence was heinous in nature. The above mentioned authorities are fully attracted in the instant case.

8.         For the time being, reasonable grounds are available on record to believe that the offence alleged in the F.I.R. was committed by the applicant, which falls within the prohibitory clause of Section 497(1) Cr.P.C. It is well-settled that for the purpose of bail, only tentative assessment could be made and detailed assessment and evaluation of evidence should be left for the trial court. This view is supported by the cases of Bashir Ahmed V/S The State, 2004 SCMR 244 and Akhtar Hussain V/S The State, 2000 P.Cr.L.J. 315 (Karachi),

9.         From the tentative assessment made above on the basis of the F.I.R. specifically nominating the accused and attributing direct role against him ; and, mainly the statement of Aleeza under Section 161 Cr.P.C., wherein she had fully implicated the applicant / accused by specifically alleging that he had forcibly committed “ziadti” with her, I am of the view that the above are prima facie sufficient to connect the applicant / accused with the offence alleged against him in the F.I.R. The applicant / accused is, therefore, not entitled to the grant of concession of pre-arrest bail. Consequently, the pre-arrest bail granted to him is liable to be recalled, and this bail application is liable to be dismissed.

10.       Foregoing are the reasons of the short order announced by me on 25.07.2014, whereby this bail application was dismissed, the interim pre-arrest bail granted to the applicant was recalled, and it was ordered that the applicant, who was present in Court, be taken into custody forthwith by the investigating officer who was also present in Court. 

It is hereby clarified that the assessment made and the findings contained herein are tentative in nature, which shall not prejudice the case of any of the parties, and the learned trial court shall proceed to decide the case strictly on merits in accordance with law.

The office is directed to return the original statement dated 08.07.2014 of Aleeza recorded under Section 161 Cr.P.C. to the investigating officer for placing the same with the police papers, and to retain a copy thereof for record purposes.

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    J U D G E