IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA.
Cr.B.A.No.S-191 of 2021
Applicant: Mujeeb Rehman alias Mujahid Jakhro, throughhis Advocate Mr.Shabaz Ali Khan Brohi.
The State: Through Muhammad Noonari, DPG.
Complainant: Shafi Muhammad through Mr. Muhammad Afzal Jagirani, Advocate
Date of hearing: 19.07.2021.
Date of order: 19.07.2021.
O R D E R
Adnan-ul-Karim Memon, J:-The Applicant seeks indulgence of this Court against the order dated 24.02.2021, passed by the learned Sessions Judge Shikarpur, whereby post-arrest bail was denied to him in FIR No.222 dated 09.11.2020, registered at Police Station New Foujdari District Shikarpur, for offenses under Sections 365-B, 452 P.P.C.
2. The case as set out in the FIR, briefly stated, is that on 08.11.2020 at 2.00 pm, the applicant along with his accomplices came into the house of the complainant and abducted Mst Sajida, daughter of Hazar Khan Soomro, as a result whereof, he lodged FIR No. 222 of 2020 at Police Station New Foujdari District Shikarpur, for offenses under Sections 365-B, 452 PPC. Subsequently, Sections 376,455, 506/2, 34 P.P.C were added to the charge sheet by the investigating officer. The applicant was arrested in the above crime on 13.11.2020. He being aggrieved by and dissatisfied with his arrest, filed Bail Application No.156 of 2021 before the learned Sessions Judge, Shikarpur, whereby post-arrest bail was denied to him vide order dated 24.02.2021. He has now approached this Court for the said relief on the ground that he is innocent and has falsely been implicated in this case/crime by the complainant in connivance with Police; that the impugned order dated 24.02.2021passed by the learned Sessions Judge, Shikarpur is not sustainable in law as well as the principles set forth by the Honorable Supreme Court in its various pronouncements. The applicant in support of his submissions relied upon the Nikahnama dated 11.11.2020 and affidavit of Free Will marriage of alleged Abductee Mst Sajida with the applicant as well as her statement under section 161 Cr. P.C before the Police on 12.11.2020, who voluntarily appeared before Police by narrating her marriage with the applicant.
3. Mr. Shabaz Ali Khan Learned counsel for the applicant has submitted that the marriage of the abductee MST Sajida with the applicant is still intact as per Nikahnama dated 11.11.2020. He also submitted that the Prosecution has failed to collect tangible evidence to connect the applicant with the commission of the crime as discussed supra. He further submitted that as regards the offenses punishable for death sentence or imprisonment for life or imprisonment for ten (10) years, the question of grant or refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case as well as the principles set forth by the Honorable Supreme Court in its various pronouncements. He has also submitted that the prosecution has failed to substantiate that there are reasonable grounds to believe that the applicant has committed an offense falling in the category of Prohibitory Clauses, however, the post-arrest bail has wrongly been refused by the learned Trial Court in deviation of law on the subject. He, however, submitted that learned trial Court while deciding the bail application went into a deeper appreciation of evidence and the circumstances as spelled out in the case were neither desirable nor permissible at the bail stage. He further submitted that the learned trial Court was under a legal obligation to consider all the attending facts and circumstances before refusing bail to the applicant. He has also submitted that in such cases even the offense does fall within the Prohibitory Clause of Section 497 Cr. P.C, the bail has been allowed to the accused person from time to time. He has further submitted that the alleged abductee has not leveled allegations of Zina against the applicant in her belated statement based on coercion. He added that because of all the attending circumstances, even the fact of delay in recording the statements of the alleged abductee was not taken into consideration by the learned trial Court while refusing him post-arrest bail. He prayed for allowing the instant bail application.
4. Muhammad Noonari, learned DPG duly assisted by Mr. Muhammad Azal Jagirani learned counsel for the complainant has supported the order dated 24.02.2021, passed by the learned Sessions Judge Shikarpur, whereby post-arrest bail was denied to him. He prayed for the dismissal of the instant bail application.
5. Arguments of the parties have been heard at some length, record perused.
6. Primarily, the tentative assessment of the record reveals the following position of the case;-
i) Prima-facie the Nikahnama dated 11.11.2020 and affidavit of alleged Abductee Mst Sajida, as well as her statement under section 161 Cr.P.C before police on 12.11.2020, requires further probe of the allegations leveled in the F.I.R.
ii) The learned trial court has to see after recording evidence whether the marriage of the abductee MST Sajida with the applicant is still intact.
iii) The learned trial court has to see whether the alleged abductee gave a subsequent statement dated 20.11.2020 under the coercion for the commission of the offense of abduction, without denying the contents of Nikhnama and affidavit of free will
iv) The learned trial court has to see after recording evidence whether Nikahnama dated 11.11.2020 has not been canceled by the learned Family court.
v) The mode of occurrence, as narrated by the abductee in her statement recorded under section 161 Cr. P.C and later on under section 164 Cr. P.C is indicative of two versions for which the learned trial court has to record evidence of the abductee whether she left the house of her own accord.
7. Section 365-B P.P.C signifies the carrying away of a woman by any means with an aim that she may be compelled to marriage or forced or made to illicit intercourse, against her will. The plain reading of the section indicates two main components and ingredients of the offense, firstly, there must be kidnapping or abduction of a woman, and secondly, the first act of abduction and kidnapping must be with the intent that she may be compelled to marriage or be forced or seduced to illicit intercourse.
8. In the instant case, prima-facie the abductee has given two versions of the incident, one before the Police voluntarily on the next day of F.I.R and the second one after a considerable period, which makes the case of the applicant that of further inquiry. On the aforesaid proposition, I seek guidance from the decision of the Honorable Supreme Court in the case of Ehsan Ullah vs. The State (2012 SCMR 1137) wherein it has been held by the Hon’ble Supreme Court of Pakistan as under:-
“This shows that in the present case the prosecution itself has two versions vis-à-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt.”
9. In this regard, guidance can also be sought from the pronouncement of Hon’ble Supreme Court of Pakistan in case of Zaigham Ashraf versus State, etc. (PLJ 2016 SC 14), wherein the Honorable Supreme Court has been pleased to observe as under:-
“Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of sub-section (2) of Section 497, Cr.P.C., where the grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice.”
10. Before parting with this order, it is important to note that the Honorable Supreme Court in its recent pronouncement has held that the courts below have not been exercising their discretion while declining bail to the accused, under subsection (1) of Section 497 Cr. P.C, under the principle of law enunciated by the Honorable Supreme Court regarding grant of bail in offenses not falling within the prohibitory clause of that subsection. It is further held that the learned courts below simply relied, for declining bail, on the incriminating material available on the record to connect the accused with the commission of the offenses alleged. Though it is well-settled law that if the offenses alleged against the accused do not fall within the prohibitory clause of subsection (1) of Section 497 Cr. P.C and thus attract the principle that grant of bail in such offenses is a rule and refusal an exception; and, as authoritatively enunciated by the Honorable Supreme Court in its several cases.
11. Besides the above the main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society if there is an apprehension of repetition of offense or commission of any other untoward act by the accused. Therefore, to make the case of an accused person fall under the exception to the rule of the grant of bail in offenses not covered by the prohibitory clause of Section 497 (1) Cr. P.C, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail.
12. The basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of:
(a) his absconding to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offense keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offense alleged.
13. In view of the above, it is also essential to note that a court which deals with an application for grant of bail in an offense not falling within the prohibitory clause of Section 497(1) Cr. P.C must apply its judicious mind to the facts and circumstances of the case and the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offense only when it finds any of the above-noted circumstances or some other striking circumstance that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.
14. The Honorable Supreme Court has already cautioned the learned courts below in Muhammad Tanveer v. State PLD 2017 SC 733, in the following terms:
"Once this Court has held in categorical terms that grant of bail in offenses not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception, then the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts."
15. In the present case, the learned trial Court has failed to adhere to the principle of law enunciated by the Honorable Supreme Court, as discussed supra, for the exercise of discretion to grant.
16. In the light of the principles set forth by the Honorable Supreme Court in post-arrest bail matters, as discussed supra, the impugned order passed by the learned trial Court is thus not sustainable under the law and liable to be reversed on the aforesaid analogy. On the aforesaid proposition, I am fortified with the decisions of the Honorable Supreme Court rendered in the cases of Tariq Bashir v. State PLD 1995 SC 34; Imtiaz Ahmad v. State PLD 1997 SC 545; Subhan Khan v. State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488.
17. Keeping in view the facts and circumstances narrated above and law on the subject, I am of the considered view that the case of the applicant is of further inquiry fully covered by section 497(2) Cr. P.C entitling for the concession of post-arrest bail.
18. In view of what has been discussed above, this application is allowed and the applicant is admitted to post-arrest bail in FIR No.222 dated 09.11.2020, registered at Police Station New Foujdari District Shikarpur, for offenses under Sections 365-B, 376, 452,455,506/2, 34 PPC provided he furnishes bail bonds to the tune of Rs. 1, 00,000/- (one lac only) and PR Bond in the like amount to the satisfaction of learned trial Court.
19. The observation made hereinabove is tentative which shall not prejudice the case of either party at trial.