ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl Misc. Appln. No.23 of 2010.
Crl. Transfer Appln. No.11 of 2010
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
FOR KATCHA PESHI.
17.02.2010.
Mr. Abdul Qadir Abro advocate for applicant in Crl. Misc. Appln. No.23/2010.
Dr. Musrat Shaheen in person in Crl. Transfer Appln. No.11/2010
Mr. Nisar Ahmed Abro, State Counsel.
-.-.-.-.-.-.-.-.
By this order I propose to dispose of Crl. Misc. Appln. No.23/2010 and Crl. Transfer Appln. No.11/2010. FIR No.104/2008 was recorded at Police Station City, district Jacobabad on 30.6.2008 for an incident alleged to have occurred on 16.6.2008. The complainant was Raees Muhammad Malook. He stated that Mst. Musrat Shaheen is his grand daughter who was married to one Jahangir Abro on 31.5.2008. On 12.6.2008 at about 1:00 a.m said Jahangir Abro after beating and causing blows to Mst. Musrat Shaheen left her in the house of the complainant. On 16.6.2008, Jahangir, his brother Shafique and Anees, their mother Mst. Fareedah and their sister Reehana entered the house of the complainant and after entering the house closed the door from inside. Upon pointation of weapons they over powered the inmates. Jahangir is alleged to have broken safe and took away gold ornaments of five tolas. Then all the five trespassers started beating Musrat Shaheen and dragged her outside the door. Anees and Shafique sat on a motorcycle while the other accused took Musrat Shaheen in a Car and thus kidnapped her. After consulting the Nekmard of locality FIR was lodged 14 days latter. The case was originally submitted to the Anti-terrorism Court. Application under section 23 of Anti-terrorism Act was filed. This application was allowed vide order dated 25.2.2009 and it was held by the Judge, Anti-terrorism Court Jacobabad that Anti-terrorism Court did not have jurisdiction. Challan was filed and thereafter charge was framed by the trial Court. Bail was granted to accused Abdul Rasheed, Shafique Rehman, Mst. Ghulam Fareedah and Mst. Reehana vide order dated 31.12.2009. Bail was also granted to co-accused Anees vide order dated 07.03.2009. Cancellation Application has been filed under section 497(5), Cr.P.C praying for cancellation of bail allowed to these persons.
Learned counsel for the applicant submitted that said Jahangir subsequently committed suicide. This position is controverted by the respondents and they stated that Jahangir was murdered and that case is pending in the Court below. He further submitted that the respondents/accused persons remained absconder for a long time and the trial Court without looking into merits of the controversy has granted them bail for a sum of Rs.50,000/-. Learned counsel relied upon Shameem Akhtar versus The State 2010 P.Cr.L.J 135 and Raja Fazal-ur-Rehman versus Muhammad Afzal and another 2010 SCMR 179. On the question of misusing of bail facility, learned counsel referred to ground 4 where it is stated “after the grant of bail they are misusing the concession of bail and harassing the prosecution witnesses to not given the evidence against them”. The respondents except respondent No.6 and respondent No.5 are present in Court. They categorically deny that they have misused the facility of bail. They accused Mst. Musrat Shaheen and her family of hounding them and of murdering Jahangir. They further stated that the family has been ruined because of malicious litigation initiated by the family of the applicant. Learned State Counsel submitted that charge has been framed and it would be appropriate if the trial Court is directed to proceed with the trial expeditiously.
I have considered the submissions made by the learned counsel and have also gone through the record. In case of Anees Ali while granting bail application, the following reasons prevailed with the Court below :
“There is inordinate delay of about 14 days in lodging he FIR without furnishing any plausible explanation as such the lodgment of the same after due consultation and deliberation can not be ruled out. The FIR appears to have been lodged on the basis of some matrimonial dispute between abductee Mst. Musrat Shaheen and absconding accused Jahangir who are husband and wife. There is no any specific allegation against the applicant accused who is only shown to be with the co-accused. The applicant accused is not alleged to have helped the co-accused in either abducting the abductee or committing robbery. The abductee has also not supported the complainant in toto in her statement made before the Magistrate. The abductee has also joined co-accused besides with drawing her case filed for dissolution of her marriage before family Judge Jacobabad as informed by the applicant’s counsel, which fact is also confirmed by Mr. Wahid Bux Balouch advocate present in Court in an other case who had appeared before the ATC on behalf of complainant when this case was pending there, as such there is no likelihood that the abductee would support the prosecution case. In these circumstances I am of the humble view that the applicant accsued’s case needs further inquiry. Accordingly the applicant accused is granted bail subject to his furnishing surety in the sum of Rs.50,000/- (Fifty thousands) and PR bond in the like amount”.
In case of other four respondents in the order dated 31.12.2009, the following reasons prevailed with the Court below :
“Heard learned counsel for the applicants/accused and perused the annexures of FIR. Learned counsel prays for ad-interim pre-arrest bail arguing that the applicants/accused being innocent are implicated falsely: that applicant/accused No.1 is not named in the FIR while there is no specific allegation against remaining applicants/accused: that the FIR was lodged on the basis of matrimonial dispute between co-accused Jahangir and alleged abductee , Musrat Shaheen who were husband and wife; that the alleged abductee Mst. Musrat Shaheen had not supported the complainant’s version in her affidavit filed in the Honourable High Court of Sindh Bench at Sukkur: that co-accused Anis and Abdul Karim are granted bail and the case of applicants/accused deserve to be granted bail on the rule of consistency: that there is inordinate delay of 14 days in lodging the FIR without explaining the cause of such delay which shows that belated FIR has been lodged after consultation and deliberations: that all the members of one family has been entangled falsely: that applicants/accused shall be disgraced, humiliated and tortured b the police if arrested.
The contentions raised by the learned counsel require consideration, therefore, without touching merits/demerits of the case, the applicants/accused are granted ad-interim pre-arrest bail subject to furnishing surety in the sum of Rs.50,000/- (Fifty thousands) each and PR bond in the like amount. Notice to DPP. Call for police papers. The applicants/accused are directed to appear before this Court on 09.1.2010 for confirmation or otherwise besides appearing before trial Court.”
The first reason which prevailed with the Court below is the delay in lodgment of FIR. Learned counsel relied upon Shameem Akhtar’s case in the first place. The facts of that case were that wife of the complainant was left by the complainant with the accused because the accused stated that she would be trained in show business. Subsequently when he went to collect his wife he was informed that the complainant has shifted from there and from the new place he was informed hat his wife had gone with Mst. Shameem Akhtar and had not come back. Matter remained like that for two weeks. Eventuality after about two weeks FIR was lodged. This Court held that the delay in the lodgment of the FIR was not material because till the time of lodging the FIR the abductee had not yet been recovered and therefore complainant could not have known as to what was role of the applicant in that process. In Fazal-ur-Rehman’s case facts were that the abductee Raja Abdul Rehman who had settled in Norway contracted a second marriage in Pakistan with Mst. Nageena Kausar. This during the subsistence of his first marriage. Relative of his first wife did not take well to his second marriage and the accused stated to be close relative of the first-in-laws managed to take abductee to Lala Moosa with him on his abductee’s motorcycle on some pretext of encashing Norwegian currency. After lapse of sufficient time when the abductee did not return home, his second wife, in whose presence abductee was taken away by the respondent/accused, tried to contact her on mobile phone and the abductee on phone told her that he was far away from his house and asked her to pray to God for his return and the phone was disconnected. Although the FIR was registered on 31.10.2005 and four years had lapsed, the abductee was till untraced and there was every likelihood that he might have been killed. The respondent/accused after remaining fugitive from law for sufficient time applied for bail. The trial Court rejected bail application but bail was granted by the High Court. It was in this context of the facts that the Supreme Court did not consider delay in lodging of FIR as material. In the present case the FIR reveals that it was right in front of eyes of the complainant and his family members that property was stolen and Mst. Musrat Shaheen was abducted. In presence of these two clear positions even then the FIR was lodged after 14 days. Therefore, delay in lodgment of FIR in the present case is of totally different consequences than delay in lodgment of FIR in Mst. Shameem Akhtar’s case and Raja Fazul-ur-Rehman’s case. Therefore, the trial Court has rightly taken into consideration delay in lodgment of FIR.
The second ground which is prevailed with the trial Court was that statement under section 164, Cr.P.C by alleged abductee Mst. Musrat Shaheen. In her statement besides narrating previous history she stated she was present in the house of her father when there was knock at the door and her husband with pistol, two brothers of husband, mother and sister of husband were at the door. They came in and they started beating her. Thereafter she stated that “they” took some cash and ornaments. “She also stated that she was sat in the Car by Jahangir forcibly” and then she said that she became unconscious. Learned Court below has noted contradictions between what is stated in the FIR and what was stated in the statement under section 164, Cr.P.C. In FIR it is stated that all the five persons abducted her whereas in the statement under section 164, Cr.P.C it is stated that it is Jahangir who made her sit in the Car; in the FIR it is stated that Jahangir after breaking lock of the safe took 05 tolas of gold ornaments and in the statement under section 164, Cr.P.C it is stated that “they” took some cash and ornaments. The trial Court has noticed this contradiction regarding as to who made her sit in the Car. The trial Court has also taken two affidavits into consideration which affidavits are stated to have been submitted by the alleged abductee in the Court of Additional Sessions Judge and in this Court in Crl. Bail Application No.451/2008. Again Musrat Shaheen in this Court has stated that on those documents her signatures were obtained on white paper and same was also stated in statement under section 164, Cr.P.C. Therefore, these two affidavit I have not considered. However, the order passed by the trial Court in my opinion is perfectly sustainable purely on the basis of delay in lodgment of FIR and on the basis of contradiction in the statement under section 164, Cr.P.C and in what is stated in the FIR. Consequently Crl. Misc. Application No.23/2010 is dismissed.
In the Crl. Transfer Application which was an application received through post in this Court, two statements are made. Firstly it is stated that the respondents are threatening her and secondly it is stated that the Court is delaying disposal of the case. In Crl. Misc. Application as quoted above a vague and non specific allegation is made in ground No.4 that after grant of bail they are misusing concession of bail. No affidavit of any prosecution witness and no details of any such harassment or misuse has been stated in the application. If the respondents are in any way misusing concession of bail the applicants are at liberty to file appropriate application with details and supporting material before the trial Court and the trial Court shall consider that application in accordance with the law.
Charge in this case has been framed. It is case where alleged abduction has taken place. It is case where two families are pitted against each other and it is claimed that they are being ruined. It is therefore, expected of the trial Court that it shall proceed with the trial expeditiously and decide the matter at the earliest. Crl. Transfer Application No.11/2010 is disposed of with the above directions to the trial Court.
Needless to observe that while deciding guilt or innocence of accused persons the trial Court shall not in any manner whatsoever, be influenced by any of the observation made herein above.
Judge