ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl. Bail Application No.87 of 2008

Date                                         Order with signature of Judge

For hearing.

28.2.2008.

Raja Ali Asghar, for the applicant.

Mr. Munir Bakhsh Bhutto, for the State.

Complainant Mst. Sobia is present alongwith her husband.

…..

Learned counsel for the applicant has filed this bail application on behalf of applicant Nadeem son of Asghar, who has been booked in a case bearing FIR No.425/2007, under Sections 354/354-A/109/34, PPC of Zaman Town Police Station, Korangi, Karachi.

Brief facts of the case, as disclosed in the FIR, are that Mst. Sobia wife of Muhammad Noman, had lodged FIR at Police Station Zaman Town, Karachi, on 12.12.2007 in respect of an incident occurred on 29.11.2007. In her FIR she has stated that her husband was employee of Nadeem (present applicant), who owns a Tyre Shop at petrol pump near Jinnah Hospital, Karachi. She has alleged that Nadeem (applicant), co-accused Abbas and Falak Sher had a bad eye on her and they used to induce her for sex. She had told these facts to her husband. It is further alleged that on 29.11.2007 she alongwith one old person Arif and her husband were going to the house of Abbas in order to sort-out the matter with him. They had informed Nadeem and Abbas about their coming to the house of Abbas. It is alleged that while they were in rickshaw on their way to the house of Abbas, both accused stopped them. On the way Nadeem (applicant) had dragged her towards her and in this process her shirt was torn and she became naked. However, Arif had put his turban upon her. The matter was reported to the police. The police had registered the case and had arrested Nadeem while Abbas and Falak Sher are still at large.

The applicant/accused has applied for bail in the Sessions Court which was rejected by learned IInd Addl. Sessions Judge, Karachi (East) by order dated 24.1.2008. Today, Mst. Sobia/complainant alongwith her husband is present. She states that she has forgiven the accused Nadeem as he has apologized from her.

Learned advocate for the State has strongly opposed this bail application on the ground that the applicant, co-accused Abbas and  Falak Sher were in league with each other and as such they had jointly committed this offence and are equally liable. He further states that Section 354-A, PPC is punishable with death and as such the accused is not entitled to bail.

I have heard learned counsel for the respective parties and have perused the material available on the record. The complainant alongwith her husband is also present and she stated that she has forgiven the applicant/accused Nadeem and bail may be granted to him.

The offence under Section 354-A, PPC, is not a compoundable offence and as such forgiveness given by the complainant to applicant Nadeem may create mitigating circumstances while convicting and sentencing him but it cannot exonerate him from the charge. Section 354-A, PPC, is reproduced herein below:-

"354-A.  Assault or use of criminal force to woman and stripping her of her clothes. Whoever assaults or uses criminal force to any woman and strips her of her clothes, and in that condition, exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."

Keeping in view the facts of this case, it appears that the shirt of Mst. Sobia was torn in scuffle and it is yet to be determined whether accused Nadeem, Abbas and Falak Sher had an intention to dis-grace the lady and exposed her body to the public. Moreover, the FIR is delayed by 13 days and no plausible explanation has been given in the FIR for the inordinate delay in lodging the FIR. The applicant/accused is in custody for the last about 3 months. Challan has been submitted. Keeping in view the statement of the complainant in this Court that she has forgiven the applicant/accused Nadeem and the legal position in respect of application of Section 354-A, Cr.P.C. which is yet to be determined by the trial Court after recording the evidence of the complainant, I grant bail to the accused Nadeem upon his furnishing solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousand) and PR bond in the like amount to the satisfaction of the trial Court.

With the above observations, Cr. Bail Application No.87/2008 is disposed of.

Judge