IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Bail Application No. S – 357 of 2012
Applicant : Khuda Bukhsh and 4 others, through
Mr. Muhammad Ali Rind, Advocate.
Respondent : The State through
Mr. Shahzado Saleem Nahyoon, A.P.G.
Complainant : Mst. Zainab W/O Saleh Muhammad, through
Mr. Sajjad Ahmed Chandio, Advocate.
Date of hearing : 13.03.2013.
O R D E R
NADEEM AKHTAR, J. – Through this application, the applicants / accused have prayed that they may be admitted to pre-arrest bail pending trial in Crime No.29/2012 under Section 365-B P.P.C., registered at Police Station Tando Ghulam Hyder.
2. The relevant facts of the case are that an FIR bearing No.29/2012 was lodged on 30.04.2012 at 1900 hours by one Mst. Zainab W/O Saleh Muhammad (the complainant) with the Police Station Tando Ghulam Hyder, District Tando Muhammad Khan, against all the five applicants / accused. The complainant had alleged in the FIR that she was residing with her family in Village Noor Muhammad Khore, Taluka Tando Ghulam Hyder ; she had two sons and two daughters, including Mst. Khursheed, aged about 19-20 years of age ; applicant No.1 Khuda Bukhsh, who was their relative, had demanded from her the hand of her daughter Mst. Khursheed for his son Dillan alias Azam, the present applicant / accused No.2 ; the complainant had refused to marry her said daughter with applicant / accused No.2, due to which applicant No.1 became annoyed ; on 23.04.2012 at about 10:00 p.m. when all the family members of the complainant were present in their house, the applicants / accused, armed with weapons and hatchets, barged into their house and pointed their weapons at them ; applicant / accused No.2 caught hold of the complainant’s daughter Khursheed from her arms and forcibly took her with him ; all the applicants / accused went away in a car which was waiting outside the complainant’s house ; the complainant approached the Nekmards for help, but no result was forthcoming ; and, the complainant then filed an application before the Justice of Peace / Sessions Court, Hyderabad, wherein order dated 30.04.2012 was passed directing the SHO concerned to record the complainant’s statement and then to act according to law. It was specifically alleged by the complainant in her FIR that, as she had refused to marry her daughter Khursheed with applicant / accused No.2, he, with the help of applicants / accused No.1, 3, 4 and 5, had kidnapped her daughter Khursheed in order to perform Nikah with her forcibly, and to commit zina with her.
3. On 04.05.2012, Mst. Khursheed, the alleged abductee / victim, appeared at the police station, where after her statement was recorded under Section 164 Cr.P.C. In her said statement, she supported the allegations made in the FIR by stating that applicant No.2 wanted to marry her, but her mother (the complainant) had refused ; because of such refusal, she was kidnapped by all the applicants / accused on 23.04.2012, who committed zina with her ; she was released by the applicants / accused and was left by them at the doorstep of her house at 05:30 am on the same day when her statement was being recorded, that is, on 04.05.2012 ; the applicants / accused had threatened that she would be killed if the complainant did not withdraw the FIR lodged by her against them ; and, she wanted that justice should be done to her. Thereafter, challan was submitted on 14.05.2012 before the learned trial court after completion of investigation by the police.
4. The learned counsel for the applicants submitted that there was a considerable delay in lodging the FIR, as according to the complainant herself, the alleged incident took place on 23.04.2012, but the FIR was lodged on 30.05.2012 ; there was no occasion for any of the applicants either to kidnap Mst. Khursheed or to commit zina with her, as she and applicant No.2 got married on 15.05.2011 ; the fact that Mst. Khursheed voluntarily appeared at the police station, shows that the allegations against the applicants are false, and they have been implicated intentionally as applicant No.2 divorced Mst. Khursheed through a Talaqnama on 23.04.2012, that is, on the date of the alleged incident ; the medical examination of Mst. Khursheed and the medical report in respect thereof, do not support the case of the prosecution, as no signs of fresh injuries or rape were detected or reported ; the prosecution’s case is not based on independent witness(s) ; none of the applicants have any previous criminal record ; and, the applicants voluntarily surrendered themselves before the trial court. Lastly, it was urged by the learned counsel that, in view of his above submissions, this is a case which requires further inquiry. He relied upon the case of Shaban alias Umed Ali V/S The State, 2008 P.Cr.L.J. 29.
5. This bail application was vehemently opposed by the learned counsel for the complainant inter alia on the grounds that there was no reason for the complainant to implicate the applicants by putting at stake the honour of her family and unmarried daughter ; Mst. Khursheed was never married to applicant No.2, therefore, there was no question of the alleged Talaq ; there was no Nikahnama or certificate of registration of the alleged Nikah ; the medical examination supported the prosecution case as it had confirmed that Mst. Khursheed had received 15 marks of abrasion on her left forearm and right thigh, and all such “injuries” were 7 to 10 days old, her hymen was completely ruptured, and she was subjected to sexual intercourse ; Mst. Khursheed remained in the illegal confinement of the applicants for 12 days from 23.04.2012 to 04.05.2012, and the 7 to 10 days’ old injuries received by her during such period were corroborated by her medical examination ; and, the grounds urged by the applicants require deeper appreciation by the trial court. The learned counsel also submitted that the applicants are not entitled to the concession of bail, as the statement of the victim / Mst. Khursheed alone is sufficient to convict them. In support of his submissions, he relied upon (i) Haji Gulu Khan V/S Gul Daraz Khan and another, 1995 SCMR 1765, (ii) Mushtaq Ahmed and another V/S The State, 2007 SCMR 473, (iii) Masood Ahmed alias Muhammad Masood and another V/S The State, 2006 SCMR 933, (iv) Ch. Waris Ali V/S The State, 2007 SCMR 1607, (v) Shaukat Ilahi V/S Javed Iqbal and others, 2010 SCMR 966, (vi) Bashir Ahmed V/S The State, 2004 SCMR 244, (vii) Rashad V/S The State, 2002 SCMR 1329, (viii) Sardar Munir Ahmed Dogar V/S The State, PLD 2004 Supreme Court 822, (ix) Rana Muhammad Arshad V/S Muhammad Rafique and another, PLD 2009 Supreme Court 427, (x) Akhtar Hussain V/S The State, 2000 P.Cr.L.J. 315 (Karachi), (xi) Bashir Ahmed and another V/S The State, 2007 P.Cr.L.J. 966 (Lahore), (xii) Muhammad Ramzan V/S The State and others, 2012 MLD 579, (xiii) Allah Dad V/S The State and 2 others, 1992 P.Cr.L.J. 420 (Peshawar), and, (xiv) Shafqat Ali V/S The State, 2011 YLR 1744 (Lahore).
6. The learned A.P.G. appearing for the state, adopted the arguments advanced by the learned counsel for the complainant. Additionally, he submitted that the marks of injuries, the medical examination of Mst. Khursheed, and her own statement under Section 164 Cr.P.C, clearly supported the prosecution’s case. He relied upon Mst. Shamim Akhtar V/S The State, 2010 P.Cr.L.J 135.
7. The learned counsel were heard by me at length, and the material available on record was also examined by me with their able assistance. Regarding the ground urged on behalf of the applicants about the delay of 7 days in lodging the FIR, the complainant had clearly stated in the FIR that after occurrence of the incident on 23.04.2012, she first approached the Nekmards for help, but when her grievance was not redressed, she filed an application under Section 22-A & B Cr.P.C. before the Justice of Peace, who vide order dated 30.04.2012, directed the SHO concerned to record her statement and then to act according to law. The above application dated 27.04.2012 and the order dated 30.04.2012 passed thereon, are available on record. FIR was lodged on the same day, that is, on 30.04.2012. Thus, I am of the view that the delay in lodging FIR was not deliberate or intentional, and there was justifiable reason and plausible explanation for such delay. Even otherwise, in the case of Haji Gulu Khan (supra), the Hon’ble Supreme Court was pleased to hold that delay in lodging FIR alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment. Therefore, the case of Shaban alias Umed Ali (supra) relied upon by the applicants’ learned counsel, cannot be applied to the instant case. This ground, being without any substance, is rejected.
8. The applicants have alleged that the complainant lodged false FIR against them as applicant No.2 had divorced Mst. Khursheed. In Rana Muhammad Arshad (supra), the Hon’ble Supreme Court was pleased to lay down the frame-work within which and the guidelines according to which, the jurisdiction vesting in the High Courts and the Courts of Session for the grant of pre-arrest bail, is to be exercised. As per guideline (d), in addition to the other guidelines, the applicant must also show that his arrest was being sought for ulterior motives, particularly on the part of the police ; to cause irreparable humiliation to him and to disgrace and dishonour him. It is to be noted that the applicants have not alleged any malafides or collusion in particular on the part of the investigation officer / police. The submission made on behalf of the applicants in this context, therefore, has no force.
9. A perusal of the FIR shows that all the applicants / accused have been specifically nominated therein with specific roles in the commission of the alleged crime, such as, all the applicants allegedly barged into the house of the complainant forcibly ; applicant / accused No.1 was armed with a gun, applicants / accused No. 2 and 5 were armed with pistols, and applicants / accused No.3 and 4 were armed with hatchets ; Mst. Khursheed was allegedly taken away forcibly by applicant No.2 by grabbing her from her forearms ; all the applicants allegedly kidnapped Mst. Khursheed by taking her with them in a car ; and, zina was allegedly committed by all the applicants with Mst. Khursheed. The prosecution has challaned the applicants in view of their specific roles in the FIR, and also in view of the statement of Mst. Khursheed recorded under Section 164 Cr.P.C., wherein she had specifically alleged that the applicants had kidnapped her and had committed zina with her. In the case of Ch. Waris Ali (supra), the Hon’ble Supreme Court was pleased to refuse pre-arrest bail as the accused had been named in the FIR with specific role, and was found involved in the commission of offence by two investigating officers. Likewise, in the case of Shoukat Ilahi (supra), bail was refused by the Hon’ble Supreme Court as the name of the accused was mentioned in the FIR, the motive had been alleged against him, and a specific role had been attributed to him. In the case of Rashad (supra), since there was direct allegation of zina against the accused, the Hon’ble Supreme Court held that the accused was not entitled to the concession of bail as the offence was heinous in nature. The above mentioned authorities cited at the bar by the complainant’s learned counsel, are fully attracted in the instant case.
10. It was strongly urged on behalf of the applicants that this is a case of further inquiry. The main ground that was pleaded was that Mst. Khrsheed was the legally wedded wife of applicant No.2, but he had divorced her. In this context, the learned counsel for the complainant heavily relied upon the case of Bashir Ahmed (supra), which was a case of zina-bil-jabr, wherein it was held by the Hon’ble Supreme Court that Nikahnama alone could not be the ground for releasing the accused on bail, as its authenticity and genuineness was yet to be examined because the victim had denied the alleged Nikah. As far as the question of further inquiry, is concerned, reliance is placed on Sardar Munir Ahmed Dogar (supra), wherein the Hon’ble Supreme Court was pleased to hold that there would hardly be a case which would not require further enquiry ; therefore, this element, by itself, is no ground for granting bail under Section 497(2) Cr.P.C. ; such orders, on their very face, are illegal as they do not fulfill the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused. It may be observed that this does not mean that after the refusal of pre-arrest bail, an accused cannot apply for post-arrest bail. This contention is, therefore, rejected.
11. As noted above, in her statement recorded under Section 164 Cr.P.C., Mst. Khursheed had fully implicated all the applicants / accused confirming the contents of the FIR. It is a well-established principle that in cases of rape, mere statement of the victim is sufficient to connect the accused with the commission of offence, if the statement of victim inspires confidence. Prima facie, the said statement of Mst. Khursheed, if seen with her medical examination report, inspires confidence. This view is fortified by the case of Mushtaq Ahmed (supra) decided by the Shariat Appellate Bench of the Hon’ble Supreme Court. In the said authority, it was also held that no sane person would like to put at stake his or her family honour as well as carrier of young unmarried daughter for petty disputes as alleged by the accused. I am also of the view that it is unimaginable that the complainant or her daughter Mst. Khursheed would dishonor themselves or their family for the petty matter alleged by the applicants, as no girl or her mother would ever dare to even think of concocting a story that may result into shame, disgrace, disrepute, degradation or humiliation to the girl and her entire family in the eyes of the society, especially when the girl is unmarried.
12. The grounds urged by the applicants for the grant of bail require deeper appreciation or evaluation of evidence which is not permissible at this stage. For the time being, reasonable grounds are available on the record to believe that the applicants committed the offence alleged in the FIR, which falls within the prohibitory clause of Section 497(1) Cr.P.C. It is well-settled that for the purpose of bail, only tentative assessment could be made and detailed assessment or evaluation of evidence should be left for the trial court. This view is supported by the cases of Bashir Ahmed (supra) and Akhtar Hussain (supra).
13. From the tentative assessment made above on the basis of the FIR specifically containing names of all the accused, the motive and the direct role attributed against each of them ; the medical report of Mst. Khursheed ; and, mainly her own statement under Section 164 Cr.P.C., wherein she had made specific and direct allegations of kidnapping and rape against the accused, I have come to the conclusion that all the above are prima facie sufficient to connect the applicants / accused with the offence alleged against them in the FIR. The applicant / accused are, therefore, not entitled to the grant of concession of pre-arrest bail. Consequently, the pre-arrest bail granted to the applicants / accused is hereby recalled, and this bail application is dismissed with direction to the applicants to surrender themselves before the learned trial court forthwith.
It is hereby clarified that the observations made and the findings contained herein are tentative in nature, which shall not prejudice the case of any of the parties, and that the learned trial court shall proceed to decide the case strictly in accordance with law.
J U D G E
*Cr.B.A.S-357-2012 .docx/’E’ Hyderabad Cases/Court Work/Ndm*