ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  1168   of   2014

DATE        ORDER WITH SIGNATURE OF JUDGE

08.01.2015.

Mr. Badal Gahoti, Advocate for applicant.

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

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             Through instant bail application, the applicant / accused namely Akhtar S/o Mir Khan, seeks post arrest bail in Crime No.101/2014 registered at Police Station Saeedabad District Matiari U/s 365-B, 147, 148, 149 PPC as the trial Court has dismissed the bail application of the applicant vide order dated 20.10.2014.

2.         I have heard learned counsel for the applicant and learned A.P.G. and my observations are as follows:-

(i)        It appears that the FIR of the instant matter was lodged after a delay of 14 days whereas no plausible explanation has been brought on record except that the complainant before reporting the case to the police authorities had referred the matter to Nekmards of the locality. It is further noted that initially at the time of recording her 161 Cr.P.C. statement before the police authorities, the abductee who has alleged that she was kidnapped and Zina was committed with her by one Farooque Dahri, whereas, the role assigned to the present applicant as well as other co-accused was to the extent that they had acted with each other in her abduction. However while recording her 164 Cr.P.C. statement before the Magistrate, she has improved her statement by alleging that the present applicant with other co-accused had committed Zina with her. This contradiction in the statement of the abductee on the face of it, makes the case of the applicant of further inquiry, which entitles the applicant for grant of bail. Reliance in this regard can be placed on the case of Shamsdin v. The State and another reported in 2014 MLD 473.     

(ii)       It has also been noticed that though the abductee has alleged that Zina was committed with her, but no medical report / examination has been carried out in the instant matter, nor any report to this affect has been placed on record by the prosecution or the complainant which also makes the case against the applicant as of further inquiry.

(iii)       In this context, the learned A.P.G. could not controvert such position and submits that though there is no medical record / report with regard to the alleged commission of Zina, at this stage of the case, however, the same could be brought on record by the complainant / prosecution at the time of trial and therefore, the applicant is not entitled for bail on this ground. However, with respect, I do not agree with such contention of learned A.P.G. as the applicant cannot be denied the concession of bail on the premise that some evidence would be brought on record which could implicate / convict the applicant at the trial stage.

(iv)      In so far as the allegation of the abduction is concerned, the learned counsel for the applicant has placed reliance on order dated. 21.11.2014 in Cr.B.A.No.S-1089/2014, wherein the co-accused who is also alleged to be present at the time of abduction, has been granted bail by this Court and therefore, the applicant to this extent is also entitled for concession of bail on the rule of consistency.

(v)       The learned counsel for the applicant has also placed on record affidavit of free will executed by the abductee and Nikahnama to substantiate that in fact the abductee is the legally wedded wife of Farooque Dahri, who is alleged to be the main accused in 161 Cr.P.C. statement of the abductee. The learned A.P.G. submits that such documents have not been produced or relied upon by the prosecution, however, it appears that the applicant had placed reliance on these documents before the trial Court at the time of seeking bail and these documents were very much available on record before the trial Court and the complainant who was being represented before the trial Court, has not controverted the same with any substantive or plausible explanation therefore, at this stage of the case, it cannot be presumed that these documents are forged or have been manipulated.

(vi)      The learned A.P.G. has also reluctantly made a statement that in so far as the case of the applicant is concerned, the same appears to be a case of further inquiry.

3.         In view of hereinabove, I am convinced that in instant case there are sufficient grounds for further enquiry and the case of the applicant / accused is covered under section 497(2) Cr. P.C., consequently the applicant / accused has made out a case for admission to bail and by means of a short order, I had granted bail to the applicant / accused on furnishing surety of Rs.100,000/- (One lac) with P.R. Bond in the like amount to the satisfaction of the trial Court. These are the reasons of short order passed today in Court.  

4.         The above bail order has been passed in compliance with the directions of the Honorable Supreme Court as contained in the case of Muhammad Shakeel v. The State reported in PLD 2014 SC 458, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned A.P.G.                        

                                                                                                            JUDGE

Tufail