ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.
Cr. Bail Appl. No.S-926 of 2014.
DATE ORDER WITH SIGNATURE OF JUDGE
25.11.2014.
Mr. VishindasKolhi advocate for the applicants
Mr. Shahid Ahmed Shaikh Asst. P.G.
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SALAHUDDIN PANHWAR J: Through instant application, applicants seek post arrest bail in crime No.96/2013 of P.S. Site Hyderabad u/s 364-A, 365-B, 34 PPC.
2. Precisely, relevant facts are that on 13.09.2013 at 2330 hours complainant Mitho Khan returned to his house where his wife Sakeena disclosed that accused Ali Gul, Nawaz, Sattar, Shafi, Dhegano with two unknown persons came to his house and abducted her sister in law Mst. Zeenat w/o Meer Hassan on force of weapons with intention to commit zina. It was also alleged that they also took her child namely Asad aged 06 years, Sabra aged 05 years so also Rs.3,75,000/-, and her gold ornaments weighing two tola. Such F.I.R was lodged, after usual investigation accused were sent-up for trial.
3. Learned counsel for the applicants inter alia contends that in fact the applicant No.1 contracted marriage with abductee on her own free will but without consent of her parents and pursuance to that she appeared before Judicial Magistrate Diplo, where she swore her affidavit contending therein that she, without any pressure, intends to contract marriage with applicant No.1 and such marriage was solemnized with the applicant No.1; such publication was made in newspaper daily Kawish dated 06.01.2014. At this stage, learned counsel for the applicants has placed copy of statement u/s 164 Cr.P.C of the abductee and contends that albeit in her 164 Cr.P.C statement, she has contended that she along-with her kids was abducted by the applicants and other accomplices but nowhere it is alleged that they committed any offence of Zina or what was the intention of the accused to abduct her, therefore this is a fit case for further inquiry.
4. Conversely, learned Assistant P.G opposed bail application on the plea that this is case of abduction, therefore, applicants are not entitled for concession of bail.
5. After hearing learned counsel for respective parties and meticulous examination of available record, suffice to say that it is matter of record that in the instant case statement of abductee was recorded but no where she has disclosed the purposes of her abduction and even she has not disclosed as to how long she was kept in their captivity. Learned counsel for the applicants has placed documents, consisting affidavit of abductee, Nikahnama and publication, in support of claim of a valid marriage between applicant No.1 and alleged abductee. Though the alleged abductee has denied the claim marriage but the documents, prima facie, support the contention of the applicants’ party and even otherwise question of valid marriage or status of document of marriage (Nikahnama), legally, cannot be decided by a Criminal Court. A plea of lawful marriage with abductee, if supported by documentary evidence, will always make a room of further probe towards allegation of abduction. The applicants / accused, even otherwise, would receive their due if they are found so deserving at the end of the day. It is settled principle of law that mere heinousness of an offence is not sufficient to refuse post arrest bail but the requirement of law is to show reasonable grounds to believe linking of the accused with such an offence.
6. Keeping in view the given circumstances, applicants have succeeded to bring their case within the purview of subsection 2 of section 497 Cr.P.C. Consequently, applicants are admitted to bail subject to furnishing solvent surety in the sum of Rs.100, 000/- each and P.R bond in the like amount to the satisfaction of the trial court.
7. Needless to say that the observation made herein above are tentative in nature and would not prejudice the case of either party at trial.
The Cr.Bail Application stands disposed of.
JUDGE
A.K