ORDER SHEET
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Date Order
with signature of Judge
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For
hearing
18.05.2012
Mr. Rizwan Ahmed
Siddiqui Advocate for the Applicant.
Ms. Rahat Ahsan learned DPG.
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Syed Hasan Azhar Rizvi J; By this order I would decide the
bail application filed by the Applicant Muhammad Yaseen.
Brief facts of the case as
incorporated in the FIR are that on 20.12.2011 the daughter of the complainant
namely Chandda aged about 12/13 years was abducted by the present Applicant and
co-accused Shazia with intention to commit zina with her. Abductee Mst. Channda
daughter of Arshad was recovered by the police on 04.03.2012 after filing of
the present Bail Application and her statement under section 161 Cr.P.C was
recorded on 04.03.2012 while her statement under section 164 Cr.P.C was
recorded before the VI Judicial Magistrate, Karachi-South on 20.03.2012.
Learned Counsel for the Applicant submitted that the
Applicant/accused has been implicated falsely in the present case due to
enmity. There is unexplained delay of ten days in registration of the FIR. No
direct evidence/eye witness is available except the statement of the co-accused
Shazia, which cannot be considered while hearing the Bail Application. He
further submitted that there is absence of mense-rea. Final challan has already
been submitted. Applicant/accused is retired personnel of armed force aged
about sixty years and is not involved in the offence alleged in the FIR. It was
further contended by the learned Counsel for the Applicant that the employer of
the Applicant provided a letter to police wherein it is stated that the
Applicant was on duty from 9:00 A.M. to 5:00 P.M. on the date of alleged
incident. Applicant/accused was arrested after eleventh day of incident from
the place of incident. Learned Counsel for the Applicant further submitted that
after rejection of two bail applications of the Applicant by the Trial Court on
02.02.2012 and 20.02.2012 the Applicant filed instant Bail Application in this
Court on 24.02.2012. It is further contended by the learned Counsel for the
Applicant that in her statement under section 161 Cr.P.C. the alleged abductee made
statement, which is contrary to the averments of the FIR. He further submitted
that she categorically stated that none has forced or seduced to commit illicit
intercourse with her. He further contended that the alleged abductee in her
statement before the Magistrate under section 164 Cr.P.C has stated that where
she was confined for about 2-½ months Shazia and Yaseen had neither come to
meet nor any phone call of them was ever received and the person in whose
confinement she was never discussed about Shazia and Yaseen. Learned Counsel
further contended that from the statement of the alleged abdcutee no material
has been brought on record that the Applicant was involved in the kidnapping of
the abdcutee. Learned Counsel for the Applicant submitted that in her statement
under section 161 and 164 Cr.P.C. alleged abductee categorically and
specifically denied that any one had forced or seduced her to commit illicit
intercourse therefore, section 365-B is not attracted. He has relied upon the
following cases:-
1. 2012 SCMR 538 (Faiz-ur-Rehman versus the State).
2. 2012 SCMR 70 (Muhammad Ishaq versus the
State).
3. PLD 1995 Supreme Court 43 (Tariq Bashir and
5 others versus the State).
4. 2003 YLR 2339 (Nazeer Ahmed versus the
State).
5. 2010 MLD 1894 (Muhammad Ameer Goonga versus
the State).
6. 2000 P.Cr.L.J. 186 (Mukhtar Ahmad alias
Mokha versus the State).
Conversely,
learned DPG Ms. Rahat Ahsan vehemently opposed for the grant of bail to the
Applicant and submitted that the Applicant is fully involved and implicated in
the kidnapping of the abductee Chanda and in her statement under section 161
and 164 Cr.P.C. she fully implicated the Applicant for commission of the
offence.
I
have heard Mr. Rizwan Ahmed Siddiqui learned Counsel for the Applicant, Ms.
Rahat Ahsan learned DPG and perused the relevant material available on record
with their assistance.
On tentative assessment of the material available on
record, it is apparent that the Applicant has been nominated in the FIR with
specific role. Eye witnesses in their 161 Cr.P.C. statements categorically stated
that while Chanda the alleged abdcutee was selling clothes at the Defence
Signal on 20.12.2011 the Applicant and co-accused Shazia took the abductee
Chanda to Ramsawami on the pretext to provide clothing and rashan to her, while
the abductee was sitting in Rikshaw with co-accused Shazia, who offered sweet
(barfi) for eating to the abductee chanda, after eating it she became
unconscious and when she regained her senses she found herself in a house under
confinement. She remained under confinement for about 2-½ months. Abductee
Chanda in her statement under section 164 Cr.P.C. deposed that the Applicant
had handed over her to one man and woman came with a child on motorcycle,
illegally confined the alleged abductee for about 2-½ months with them when the
abductee asked to those persons whey they had detained her, they told her that
they have purchased her and the abductee identified the Applicant and
co-accused Shazia before the Magistrate as the persons who had taken her to the
persons who detained her in their illegal confinement.
Prima facie learned Counsel for the Applicant has
failed to make out the case for grant of bail and the case law cited by the
learned Counsel for the Applicant in my humble opinion are also distinguishable
from the facts and circumstances of the present case. Challan has already been
submitted on 17.01.2012 in the Trial Court and five prosecution witnesses have
been shown in the calendar of witnesses.
For the reasons discussed above, I do not find any
merit in the present bail application, the same is hereby dismissed with the
direction to the Trial Court to conclude the Trial within a period of two
months and at-least examine the complainant and abdcutee within a period of one
month from receipt of the order. Thereafter, the applicant would be at liberty
to move fresh bail application, if so advised.
Observations made hereinabove are of tentative nature
and the trial Court shall not be influenced by any such observation.
J
U D G E