Cr. Bail Application Nos. 192 of 2009 & 204 of 2009

For hearing.

27.4.2009. Mr. Abdul Qadir Abro advocate alongwith applicants Shabbir Ahmed,

Abdul Nabi @ Khalid Mahmood and Nisar Ahmed in Cr.B.A No.192

of 2009.

Applicants Ali Akbar, Mark and Muhammad Hayat present in person

in Cr. B.A No.204 of 2009.

Mr. Liaquat Ali Shar Addl.A.G for the State.

By this order I propose to dispose of above two bail application Nos.192/2009 Shabbir Ahmed and others vs. The State and Cr.B.A No.204 of 2009 Ali Akbar and others vs. The State as both have arisen out of the same FIR.

The case of prosecution as per FIR is that on 11.12.2008 at about 1230 hours (12-30 a.m) the complainant alongwith his son Muhammad Alim, nephew Ashique Hussain daughter Mst. Mumtaz aged about 15/16 years and other family members after taking dinner were sleeping and on barking of dogs, they woke up and in the light of electric bulb they saw applicants Nisar Ahmed s/o Jumo, Ali Akbar s/o Qadir Bux, Shabbir Ahmed s/o Jumo, Mark s/o Qabool Khan, Muhammad Hayat s/o Jahan Khan alongwith two unknown persons duly armed with pistols were present in side the house and they directed them to keep quite and on the point of weapons the complainant party remained quite. It is further stated that applicants Ali Akbar and Shabir Ahmed went in the room and broke opened the lock of boxes and took out cash and gold ornaments, detail of which has been mentioned in the FIR, thereafter applicant Nisar Ahmed pulled the daughter of complainant from her hairs and declared that he will marry with her and they escaped by taking his daughter in the white car. It has been stated in the FIR that complainant went to the applicants and requested them to return his daughter Mst. Mumtaz as well as gold ornaments and cash whereupon applicants party kept them on hopes and when the complainant party lost hopes they lodged FIR on 21.1.2009.

The applicants approached before the Sessions Judge Ghotki for pre-arrest bail where interim pre-arrest bail was granted to Sabbir Ahmed and Khalid on 28.1.2009 and applicant Nisar Ahmed was granted in-interim pre-arrest bail on 29.1.2009 by learned Sessions Judge Ghotki. The applicants Ali Akbar, Mark, and Muhammad Hayat were also granted interim pre-arrest bail by learned Sessions Judge Ghotki, thereafter bail applications were transferred to learned IInd Additional Sessions Judge, Ghotk, who after hearing the learned counsel for the applicants dismissed the pre-arrest bail applications. Hence these present bail applications.

I have heard Mr. Abdul Qadir Abro advocate for applicants in Cr.B.A No.192 of 2009 and applicants Ali Akbar, Mark and Muhammad Hayat in person in Cr.B.A No.204 of 2009 as well as Mr. Liaquat Ali Shar Addl.A.G for the State.

Mr. Abdul Qadir Abro advocate for the applicants vehemently contended that there is delay of 40 days in registration of FIR which remained unexplained and admittedly reflect on the case of prosecution, specially when the police station was situated at a distance of about 4/5 k.m from the place of incident. He further contended that applicant Sahbbir Ahmed and Abdul Nabi are primary teachers and on fateful day of incident they were present at their duty at School which is manifest from certificate of D.E.O annexure-D and these applicants had produced certificate before the trial court. He further contended that applicant Nisar Ahmed is police constable and he was on his training at Karachi therefore his presence has not been established at the place of incident and that neither any weapon has been recovered from the place of incident nor lady has been recovered so as to implicated the applicants in the present case. The learned counsel for the applicants in support of his contention has relied upon the case of Ali Sher vs. The State reported in 2005 MLD 535 and Zeeshan Ali Butt vs. The State reported in 2009 MLD 171.

The applicants Ali Akbar, Mark and Muhammad Hayat have contended that they are nek mards of their village Qabool Khan Gadani and Gul Beg Gadani and they have enimical terms with the applicant Nisar Ahmed and they have been implicated because of enmity with complainant party. They have further contended that the lady had voluntarily left the house of complainant on the second day of last Eid-ul-Azha and so far her whereabouts have not been found. The complainant party just to take revenge, have lodged the present FIR and implicated them in the present case just to cause arrest and humiliate them through the police.

Mr. Liaquat Ali Shar learned Addl.A.G for the State vehemently controverted the arguments advanced by the learned counsel for the applicant as well as the applicants in person and has contended that the applicants were granted interim pre-arrest bail by the learned Sessions Judge Ghotki and they have mis-used the concession of interim bail granted to them and they did not participate the investigation, therefore the I.O has also served applicants with a notice in writing and inspite of service of that notice, the applicants did not co-operated with the investigation. However the delay has sufficiently been explained by the complainant and have duly considered by the trial court as such the delay if any, could not entitled the applicants for pre-arrest bail and that still recovery of abductee as well as robbed articles are to be made, therefore, in case, if bail is granted to applicants, it will spoil the case of prosecution and that certificate produced by the applicants Shabbir Ahmed and Abdul Nabi have not been signed by D.E.O Education and the said certificate could not be helpful to the applicants Shabbir Ahmed and Abdul Nabi.

I have considered the arguments advanced by the learned counsel for the applicants, as well as submissions of applicants in persons and learned Addl.A.G and have gone through the material available before me.

The complainant in his FIR has disclosed the names of all the applicants and has also attributed specific role to them in the FIR. The drastic role has also been attributed to applicant Nisar Ahmed who pulled the hairs of abductee Mst. Mumtaz and taken away her with him against her wishes. After the incident, as has been stated by complainant they requested the applicants to return abductee Mst. Mumtaz who kept them on hopes. In the present case the lady Mst. Mumtaz has been abducted and she still has not been recovered. In such type of cases complainant party has to think over several times before lodging of FIR because of family honour, prestige and dignity of abducted girl is involved and after pondering over the circumstances, if the complainant party is coming forward with the decision to lodge the FIR, they could be non-suited merely because they lodged FIR after some delay. The delay per-se is therefore not a sufficient ground to entitle the applicants for concession of bail. Admittedly the lady has so far not been recovered and her whereabouts are not known. In the present case interim pre-arrest bail was granted to the applicants and the applicants have not joined the investigation, besides the recovery of abducee, recovery of robbed articles and gold ornaments are yet to be made. The contention of Mr. Abdul Qadir Abro learned counsel for the applicants that applicants Shabbir Ahmed and Abdul Nabi are primary school teachers and they were present at their duties but the said contention is not attracted me for the reasons that the incident took place in the mid night time viz 12.30 a.m and no such school use to open in mid night therefore no teacher is suppose to remain present in school in mid night time. The contention of learned counsel for the applicants that the delay of 40 days has not been explained has also not been attracted for the reason which has been discussed in the former para of this order. The case of Ali Sher vs. The State reported in 2005 MLD 535 speaks about different proposition which are inapplicable under the circumstances of the present case and in the case of Zeeshan Ali Butt vs. The State reported in 2009 MLD 171. The alleged abductee herself appeared before the High Court and refuted claim of her parents in FIR lodged against her husband with whom she married, which is entirely different aspect of that matter with the present case, for the simple reason that lady has so far not been recovered and her whereabouts are not known. The case law relied upon by Mr. Abdul Qadir Abro in my humble opinion are distinguishable with the facts and circumstances of the present case. The contention of applicants Ali Akbar, Mark and Muhammad Hayat are also not supported with any evidence to show that they are nek mards of locality and they have enmical terms with applicant Nisar Ahmed. In case they have enmical terms with applicant Nisar Ahmed who is police constable they may first appear before I.O with cogent evidence and that the I.O will consider their dispute and will exonerate them from the case, if the defence of these applicants have substance. The applicants have not alleged the malafide against the complainant or police.

For the aforesaid reasons and circumstances applicants have not made out any case for grant of bail. Both the bail applications are therefore dismissed.

JUDGE.