IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.1671 of
2023
Before:
Mr. Justice
Naimatullah Phulpoto
Justice Ms.
Kausar Sultana Hussain
-----------------------------------------------
04.09.2023
Mr. Zulfiqar Ali
Khan Jalbani, advocate for applicant
Mr. Ali Haider
Saleem, Additional Prosecutor General
Mr. Ayaz Ali
Chandio, advocate for complainant
-------------------------------------------------
O R D E R
NAIMATULLAH PHULPOTO, J.- Applicant/accused Waseem seeks post arrest bail in
Crime No.44/2023, registered at P.S. Tipu Sultan, on 15.02.2023 for offence
under Section 365-B, PPC. During investigation, section 7 of the Anti-Terrorism
Act, 1997 was added. Applicant applied for bail before learned Judge,
Anti-Terrorism Court-II, Karachi in Special Case No.727/2023 for offences under
Section 382, 365-B, PPC read with section 7 of the Anti-Terrorism Act, 1997,
the same was rejected vide order dated 18.07.2023. Thereafter, applicant has
approached this Court for the same relief.
2. Brief facts of the prosecution case are that on 15.02.2023,
the daughter of complainant, namely Ms. Areesha, aged about 20 years left home
for University and got up in a coaster, driven by applicant Waseem. It is alleged
that Ms. Areesha was accompanied by her friend Ms. Qandeel, both got down from
the van. When Ms. Areesha reached in her classroom she received a call on her
cellular phone No.03062373787 from applicant Waseem that her University
Identity Card was lying in the coaster. It is alleged that Ms. Areesha reached
at the address given by accused Waseem. It is alleged that she made a call to
her friend Ms. Qandeel that she has been abducted by applicant Waseem.
Complainant contacted his daughter but her mobile phone was switched off. It is
alleged in the FIR that his daughter has been abducted by accused Waseem to
compel her for marriage. After usual investigation, challan was submitted
against applicant/accused for offences under Sections 365-A, 365-B, 34, PPC
read with section 7 of the Anti-Terrorism Act, 1997.
3. Learned advocate for applicant Waseem mainly contended that Ms. Areesha has contracted
marriage with applicant with her own accord and relied upon Nikahnama (Annexure
E, Page 91) and Affidavit of Freewill (Annexure E/2, Page 97); that Ms.
Areesha had appeared before learned Additional Sessions Judge-III/Ex-Officio
Justice of Peace, Ghotki and prayed for providing her protection and to her
husband. It is further contended that complainant used his influence and Ms.
Areesha was handed over by the applicant to her father and her 164, Cr.PC
statement was recorded against her wishes; that Ms. Areesha has filed a suit
for jactitation of marriage against applicant Waseem and applicant has filed a suit
for restitution of conjugal rights against Ms. Areesha, both suits are pending
before the Family Court concerned; that genuineness of Nikahnama is yet to be
determined by the Family Court. Learned advocate for applicant has also argued
that this is the case of kidnapping of a girl and learned Judge, Anti-Terrorism
Court lacks jurisdiction in the matter. Lastly, it is submitted that this is a
case of divergent statements and the case against the applicant/accused
requires further inquiry. In support of their contentions, reliance is placed
on the case of Syed Amanullah Shah vs. the State & another (PLD 1996 SC 241); Ghulam Hussain vs. State (PLD 2020 SC 61) and
Muhammad Zahoor Ahmed vs. The State (2010 PCr.LJ 113).
4. Mr. Ali Haider Saleem, Additional Prosecutor General Sindh,
argued that no doubt this is the case of divergent statement but Ms. Areesha in
her statement under section 164, Cr.PC has implicated applicant Waseem that he
kidnapped her to compel for marriage and opposed the bail application.
5. Learned advocate for the complainant argued that Ms. Areesha
was kidnapped by applicant/accused Waseem and was compelled for marriage; that forged
Nikahnama has been prepared by accused; that Ms. Areesha has filed a suit for
jactitation of marriage and implicated accused Waseem in the commission of
offence in her statement under section 164, Cr.PC before the IO of the case. He
strongly opposed the bail application.
6. We have heard the learned counsel for the parties and
perused the relevant record.
7. In our
tentative view, a case for grant of bail to the applicant/accused is made out
for the reasons that FIR was lodged under Section 365-B, PPC in which it is
alleged that applicant/accused kidnapped Ms. Areesha, for compelling her for
marriage but copy of Nikahnama, Annexure E and Affidavit of Freewill,
Annexure E/2 show that she has contracted marriage with the applicant without
compulsion. Learned counsel for the applicant has also filed a copy of Criminal
Miscellaneous Application No.435/2023, preferred by Ms. Areesha before learned
Additional Sessions Judge-III/Ex-Officio Justice of Peace, Ghotki against
Mirpur Mathelo police and prayed for providing her protection and to her
husband/applicant. It appears that learned Additional Sessions Judge-III/Ex-Officio
Justice of Peace, Ghotki vide order dated 21.02.2023 ordered Ghotki Police to
provide protection to Ms. Areesha and her husband Waseem. In the aforesaid
criminal miscellaneous application it is mentioned that Ms. Areesha has
contracted marriage with applicant with her own accord. Learned advocate for
the applicant has also placed on record copies of the messages in between
applicant Waseem and Ms. Areesha, in order to show that Ms. Areesha had contacts
with the applicant. The crucial issue
involved in the matter is pending before the Family Court concerned for
determination whether Nikahnama between the applicant/accused and Ms. Areesha
is genuine or otherwise that could only be determined by the Family Court
concerned. Ms. Areesha has given
divergent statements in the case, which created reasonable doubt in the
prosecution case. The applicant is in custody for about two months. In view
of foregoing circumstances, case for grant of bail to applicant/accused is made
out. Rightly reliance is made on the case of Syed Amanullah Shah versus the
State and another (P L D
1996 Supreme Court 241) the Supreme Court has held that:
5.
.. So
whenever reasonable doubt arises with regard to the participation of an accused
person in the crime or about the truth/probability of the prosecution case and
the evidence proposed to be produced in support of the charge, the accused
should not be deprived of benefit of bail. Freedom of an individual is a
precious right. Personal liberty granted by a Court of competent jurisdiction
should not be snatched away from accused unless it becomes necessary to deprive
him of his liberty under the law. Where story of prosecution does not appear to
be probable, bail may be granted so that further inquiry may be made into guilt
of the accused.
8. Prima facie, there are no reasonable grounds for believing that
the applicant/accused has committed the alleged offences but there are
sufficient grounds for further inquiry into his guilt. Resultantly, concession
of bail is extended to applicant/accused Waseem son of Muhammad Lateef, subject
to furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two hundred thousand) and P.R. bond in the like amount to
the satisfaction of the trial Court.
9. Before
parting with this order, we observed that learned Judge, Anti-Terrorism
Court-II, Karachi before proceeding further with the case, shall decide the
point of jurisdiction in view of principles laid down by the Honble Supreme
Court of Pakistan in the case of Ghulam Hussain vs. State (PLD 2020 SC 61).
10. Needless to mention here that the observations made herein
above are tentative in nature, the trial Court shall not be influenced by the
same while deciding the case of the applicant/accused on merits.
J U D G E
J
U D G E
Gulsher/PS