IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail Application No.S-694 of 2015
M/s Abdul Hakeem Sangi and Mujtaba Naich Advocates for applicants.
Mr. Mohammad Arif Malik advocate for complainant.
Mr. S. Sardar Ali Shah APG.
Date of hearing : 18-01-2016
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ORDER
SHAHNAWAZ TARIQ,J:- Through captioned post-arrest bail application, applicants Qadeer and Ghulam Hussain have impugned order dated 08.08.2015, whereby their earlier bail application was declined by the Court of learned IV-Additional Sessions Judge, Mirpur Mathelo.
2. Necessary facts spelt out from the FIR are that accused Qadeer along with 4 named co-accused persons entered into house of complainant at 9:00 p.m, and forcibly abducted his daughter Mst. Mehnaz with intention to contract forcible marriage with her, hence instant FIR.
3. Learned Counsel for applicant contended that applicants are innocent and have been falsely implicated by the complainant in instant case with ulterior motive, as niece of the complainant namely Mst. Sobiahad contracted her love marriage with Naveed Ahmed, brother of main accused Qadeer, and subsequently they both filed Constitution Petition against SSP, Ghotki and complainant party for providing protection; that alleged abductee was not recovered from the possession of applicants; that after framing charge, statements of abductee and complainant have been recorded, while two eye witnesses namely Mohammad Nawaz Malik and Imran Malik, have been given-up by the prosecution; that semen of main accused Qadeer were not taken by the Medico-Legal Officer, hence allegations levelled by the abductee requires further consideration; that during investigation, on application of co-accused Sagheer, D.I.G, Sukkur transferred investigation to Inspector Ghulam Ali Jumani who after re-investigation, submitted report and concluded the case to be false and fabricated.Learned Counsel relied on the case of Zahid Iqbal v. The State(2009 YLR 356), Mir Hassan v. The State(PLD 2006 Karachi 472)Mst. Hanifan Bibi and another v. The State (2006YLR 2955), Mohammad AShiq alias Bhap v. The State (2006 MLD 505) and Haji Mohammad Aslamv. The State (2006 MLD 624).
4. While controverting the above submissions,learned Counsel for complainant vehemently contended that names of both applicants are mentioned in F.I.R. and accused Qadeer had abducted the abductee on gun point with the assistanceof other co-accused; that the abductee in her statement under Section 164 Cr.P.C recorded by Judicial Magistrate, had fully implicated the main accused Qadeer for committing zina upon her, while co-accused were guarding the premises, hence applicants are not entitled for concession of bail.He relied on the case of Jahanzeb and another v. The State (1999 MLD 1222), Shabir and 6 others v. The State (2012 YLR 964), Mohammad Irshad v. The State and others (2015 P.Cr.L.J 1473), Mushtaque Ahmed another v. The State (2007 SCMR 473), Shafqat Ali v. The State (2001 YLR 1744), Rashid v. The State and others (2011 MLD 797) Abdul Razzak alias Bhola v. The State (2007 P.Cr.L.J 1788) and Khalil-ur-Rehman alias Gudoo v. The State and another (2011 MLD 1088).
5. Learned AAG supported the arguments advanced by the learned Counsel for complainant.
6. Heard learned Counsel for the parties supported with case law and examined the material available on record prudently.
7. Perusal of record emanates that names of both applicants are mentioned in the F.I.R,and there are specific allegations of forcibly abduction of the victim on gun point by accused Qadeer along with his companions from the house of complainant. Statement of the abductee Mst. Mehnaz under section 164 Cr.P.C. was recorded by the learned Judicial Magistrate on 15.06.2015,whereby she had categorically stated that accused Qadeer along with co-accused abducted her from her house on gun point and he committed zina upon her, while co-accused were guarding the premises. Such statement has been supported by the medical certificate that zina was committed upon the abductee. Per mashirnama of recovery of the abductee, she was recovered near from Dahar Wah curve, while allegedly culprits after seeing the police, fled away from the spot.
8. The contention raised by learned counsel that applicants have been implicated falsely, asrelative of complainant namely Mst. Sobia had contracted her love marriage with Naveed Ahmed who is real brother of main accused Qadeer, and subsequently, the couple also filed Constitution Petition No.2085 of 2015 before this Court seeking their protection, did not convince me as nobody can imagine to destroy the future, honour and modesty of his real daughter to settle the account of animosity of his relative against brother of main accusedby scandalizing and stigmatizing his own daughter. Presently statements of complainant and abductee Mst. Mehnaz have been recorded by the trial Court,while the statements of medico-legal Officer, Investigating Officer and Judicial Magistrate are to be recorded, which reflects that complainant has not delayed the trial.
9. Perusal of medical report emerged that “Human blood and HumanSemenhave been detected in each external and internal vaginal cotton swabs”. Sufficient incriminating material had been collected by the prosecution against accused Qadeer during investigation, which prima-facie connects the accused with the commission of alleged offence as statements of the prosecutrix had adequately implicated the accused regarding commission of alleged offence.
10. Undoubtedly, there is delay of about 4 days in the lodgment of F.I.R. with police by the complainant, which would not affect the merits of the case, as in the cases of abduction of women folk, aggrieved family at the first instance makes utmost efforts for return of abducted woman at their own accord to save their honour and respect in society, therefore, the factum of such delay should be adjudged in purview of other connected circumstances. Moreover, on the simple application of co-accused Sagheer Ahmed, the offence was re-investigated under the order of DIG Sukkur, for which no satisfactory explanation has been furnished and even in said application, there were no specific allegations about the conduct of earlier Investigating Officer regarding any illegality or partiality committed by him or any favoritism extended to the complainant, hence any order for re-investigation without any legal justification is transgression of prescribed procedure as well as Police Rules for conducting investigation of the crime registered with the police. In the case of Riaz Hussain v. The State (1986 SCMR 1934), the honourable Supreme Court has observed that trend of re-investigation has been developed to obtain the favourable reports by the influential persons which did not assist the Court to reach on the correct conclusion.Thus, the conclusion of re-investigation report regarding the occurrence of instant offence, would not defeat the merits of the case, in view of the statements of the abductee recorded under section 164 Cr.P.C. as well as by the trial Court.It is well settled that mere statement of victim alone in a rape case, would be sufficient to connect accused with commission of offence, if the statement of victim inspires confidence and no ulterior motive and malafide has been spelt out from the averments of F.I.R. supported with other iota of evidence collected by the prosecution.Reliance is placed on the case of Mushtaq Ahmed and another v. The State (2007 SCMR 473). In the case of Rashid v. The State (2011 MLD 797), it was observed as under:-
“Accused party had allegedly taken the abductee from one place to another on gun point and kept her for about six months in illegal confinement and subjected her to illegal sexual intercourse. Accused had been directly charged by the abductee for commission of such heinous immoral offence. Keeping in view the bare statement of abductee in mind, there was no possibility of false implication of accused with commission of crime of such heinous nature. Medical evidence had fully supported the prosecution version. Prima-facie, accused was reasonably connected with commission of offence of moral turpitude and heinous in nature. Bail petition of accused, was dismissed, in circumstances”
11. Consideration the above fact and circumstances, applicant Qadeer has failed to make out his case for grant of bail on the ground of further inquiry as contemplated under Section 497 Cr.P.C, hence his bail application stands dismissed. However, there are general allegations against co-accused persons including applicant Ghulam Hussain that they accompanied with main accused for the commission of alleged offence and they guarded the premises, when main accused committed zina upon the prosecutix, and such allegations require further inquiry and it for the learned trial Court to thresh out the truth at the trial. Consequently, applicant Ghulam Hussain is admitted to post arrest bail on the furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of the learned trial Court. Nevertheless, in case of any misuse of the concession of bail by applicant Ghulam Hussain, learned trial Court would be at liberty to initiate legal action against him in accordance with law.
The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on the merits.
JUDGE