ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application  No.885 of 2010. _____________________________________________________

Date                             Order with signature of Judge

1.         For orders on M.A. No.4353/10

2.         For hearing

06.09.2010.

Mr. Muhammad Farooq, Advocate for the Applicant

Mr. Muhammad Iqbal Awan, APG

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Being aggrieved and dis-satisfied by the order dated 27.03.2010 passed by the learned IVth Additional District and Session Judge, Karachi (East) in Session Case No.1749/09, FIR No.873/09 under Section371-A, Women Protection Act, 2006, registered at Korangi Industrial Area, Karachi, whereby the bail application of applicant/accused was dismissed. The applicant/accused has preferred this appeal under Section 497 Cr. P.C. The brief facts for the purposes of disposal of the instant bail application as stated in the FIR are that the complainant Ghual Mustafa son of Ali Hassan lodged FIR on 17.10.2009, stating therein that about 05 years prior with the consent of his family members he married with Mukhtiar Bibi @ Begum by consent of both parties. From the wedlock he has three children and the age of old one is three years. That inspite of marriage with mutual consent he paid Rs.85,000/- to family in laws. That on 23.08.2009 at 09.00 p.m. his father in law (1) Haji Mashooq son of Ghulam Hyder alongwith (2) Shah Muhammad son of not known (3) Hakim Ali s/o Shah Muhammad, (4) Aijaz s/o Abdul Ghani, (5) Abduul Ghani son of not known (6) Ghulam Umer son of Laiq and (7) Hyder Ali son of Muhammad Liaq, all these are relatives of his wife. All these on the instigation of Sardar Ahmed Chandio son of Shabir Ahmed Chandio come in his house of Mehran Town. They took his wife without his consent and permission forcibly. His three children whose ages are 03 years to one week were left behind. He alleged that culprits extended threats me for dire-consequences if he will pursue them, he further alleged that when he went to bring his wife they neither handed over his wife nor allowed to meet with her. He suspicions that his father in law alongwith his six companions sold out his wife and getting money or they will sell. Hence on report of complainant case was registered.

Learned counsel for the applicant/accused argued that the FIR was lodged after delay of three months without any plausible explanation. He further argued that complainant lodged the instant FIR as counter blast to the FIR bearing No.177/2005 registered against the complainant. He further argued that co-accused Shah Muhammad has already been granted bail by IV Addl. Session Judge Karachi East vide order dated 25.02.2010 hence, the role of consistency is very much attracted to the bail of the applicant/accused. He has also referred order passed by this Court in Cr. Bail Application No.545/10, whereby one of the co-accused namely Muhammad Ramzan Mugheri has been granted bail by this Court. Learned counsel has read out the provision of Section 371 and submitted that none of the ingredient of the provision is attracted in the instant case. It is further contended that this is a case of improvement from the allegations contained in the C.P. filed earlier to the same fact wherein it was alleged that at the time of incident the matter of complainant was also present whereas as per her statement all the ingredient under Section 161 Cr. P.C. she has denied such allegations. He further argued that challan has been submitted and alleged offence does not warrant punishment of death, life imprisonment or even ten years. He prayed that the applicant/accused is entitled for concession of bail.

The learned APG though not conceded to the grant of bail, however, has not been able to controvert the arguments of the learned counsel for the applicant and the legal position emerging from the perusal of the record of the instant case.

            I have heard the arguments of both the learned counsel and perused the record as well as the order passed by this Court in Cr. Bail Application 545/2010, it  appears that there is inordinate delay in registration of the FIR which appears to have been caused on account of having filed the constitution petition. It further appears that the accused persons nominated in the FIR are the father and relative of the alleged abductee, who have already registered a FIR against the complainant for the abduction of Mst. Mukhtiar Bibi. Record further shows that there is no eye witness of the incident nor the abductee have been recovered so far inspite of raids conducted by the police at the house of accused person nominated in the FIR. From perusal of the contents of the FIR it further appears that the provision of Section 371-A are hardly attracted in the instant case. Moveover, the co-accused have granted bail by the trial Court as well as by this Court.

            Keeping in view hereinabove facts and on tentative assessment of the record I am of the opinion that the applicant/accused has been able to make out a case for grant of bail as the case appears to be of further inquiry and cannot be turned free of doubt.

Under the circumstances, the applicant/accused is admitted to bail subject to furnishing surety in the sum of Rs.150,000/- with P.R. Bond in the like amount to the satisfaction of the trial Court.

            It is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by any such observation, and shall decide the cases of the applicant/accused strictly in accordance with law and on the basis of evidence adduced by the parties. It is further clarified that if the applicant/accused misuses the concession of bail the trial Court shall be at liberty to proceed in accordance with law.

Karachi.                                                                                               J U D G E

Dated       .09.2010