Faqir Muhammad & others (Applicant) VS The State (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH

CIRCUIT COURT, HYDERABAD

Cr. Bail Appln. No.S- 380 of 2009

Date Order with signature of Judge

Present:

Mr.

Justice Gulzar Ahmed.

Syed Ghulam Haider Shah, Advocate for the Applicants along with Applicants.

Mr. Muhammad Iqbal Kalhoro, Additional Prosecutor General Sindh for the State.

The Applicants seek grant of pre-arrest bail in Crime No. 31 of 2009 of P.S Jhol for offences U/s 365-B,

376(I), 382, 342, 452, 147, 148, 149 PPC.

The allegations against the Applicants are that on 24.5.2009 at 1800 hours they along with other co-accused have entered the house of the Complainant and not only robbed golden ornaments, documents of lands but have also abducted Mst. Gul Bano aged about 22 years and wife of one Ghulam Ali and that such abduction was made in order to marry or commit zina with her and that said Mst. Gul Bano came back to home on 30.5.2009 whereafter she narrated the fact of her taking to an unknown place where co-accused Muhammad Ali Sharr committed zina with her upon which the complaint was lodged with the police station.

The learned Counsel has contended that there is six days delay in lodging of the FIR and that in the statements U/s 161 and 164 Cr.P.C of the abductee, the abductee has not given description of the weapons held by the Applicants as described in the FIR and that she has not given similar description of robed property as described in the FIR. He further contended that there is no allegation against the Applicants that they have committed zina with the abductee and that the general allegation is made against them. He has finally contended that the Applicants are entitled to the grant of pre-arrest bail as the case is of further inquiry and in support of his submissions has relied upon the judgments reported in PLJ 2008 Criminal cases 1191, PLJ 2008 Criminal cases 1184 and PLJ 2008 Criminal cases 1147.

The learned Additional Prosecutor General on the other hand has contended that the scope of grant of bail before arrest is limited and the grounds for granting such pre-arrest bail are not attracted to the present case. He has contended that mala fide or false implication are not pleaded. As regards the difference in the statements of the abductee with that of the contents of FIR, he contended that the abductee could not be expected to remember or know about the nature of arms, which were carried by the Applicants nor could she be expected to know exactly the golden ornaments that were robbed and that in any case such aspect of the matter is of deeper appreciation of evidence, which at this stage cannot be made. He further contended that there is specific allegation against the Applicants of trespassing the house with weapons and not only of robbing the property but of abduction of Mst. Gul Bano, to which prohibitory clause of section 497 Cr.P.C is attracted and that on the basis of the material collected by the prosecution, the Applicants seem to be connected with the offence. As regards the delay in lodging of the FIR, the learned Additional Prosecutor General has submitted that such delay has been explained in the FIR itself inasmuch the family of the abductee has tried to recover the abductee by contacting the accused party and that even otherwise the cases of abductions of women folk of respectable families are not immediately reported to the police as in the first place they try to recover the abductee through involving elders/neutral persons and the extreme measure of lodging of FIR is deferred. He has contended that the Applicants are not entitled to the grant of pre-arrest bail.

I have considered the submissions made by the learned Counsel for the parties and have also perused the record. The incident has taken place in the house of the Complainant on 24.5.2009 and it is alleged in the complaint that the Applicants have entered into the house of Complainant duly armed and while robbing the property have also abducted Mst. Gul Bano aged about 22 years, who seems to have been released by the Applicants on 30.5.2009 and on her disclosure that zina has been committed with her by co-accused Muhammad Ali Sharr, the Complainant lodged FIR on the same day against the Applicants and the co-accused.

So far the question of delay in lodging of the FIR is concerned, the same is explained in the complaint itself where the Complainant has stated that they have tried to seek the release of the abductee from the clutches of the accused persons and when ultimately the abductee was released, the FIR was lodged. It is normal in cases of abduction of a woman that prompt FIR is not lodged rather her family in order to save their honour make their own effort to cause recovery of the abductee which obviously consume some time and it does not furnish valid ground of delay.

As regards the objection that the abductee in her statements U/s 161 and 164 Cr.P.C has not described the weapons and the robbed property as have been described in the FIR, I agree with the learned Additional Prosecutor General that this factor relates to the deeper appreciation of evidence, which exercise cannot be undertaken at this stage of the proceedings.

As regards the question that only the general allegations have been attributed to the Applicants, it may be noted that the Applicants have been assigned role of entering in the house of complainant with deadly weapons in their hands and of robbing the property and abducting Mst. Gul Bano aged about 22 years and wife of one Ghulam Ali. Such allegations against the Applicants are supported with the statements not only of the abductee but also of other prosecution witnesses and therefore there seems to be specific implication of the Applicants in the crime.

Further more nothing has been said as to why the Complainant should implicate the Applicants as neither any enmity between the parties is pleaded nor any malafide.

For grant of pre-arrest bail following parameters have been laid down:-

(a)grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b)pre-arrest bial is not to be used as a substitute or as an alternative for post-arrest bail;

(c)bail before arrest can not be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d)not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;

(e)such a Petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;

(f)in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e the Court of Sessions, before petitioning the High Court for the purpose.

Reference in this respect be made to the case of RANA MUHAMMAD ARSHAD V. MUHAMMAD RAFIQUE and another (PLD 2009 Supreme Court 427).

No ground of mala fide or victimization is alleged nor the ground of ulterior motive, irreparable loss or humiliation or disgrace or dishonour is pressed. Further, as noted above, there is nothing to suggest prima facie that the Applicant may not be connected with the commission of crime.

After hearing the Counsel for the parties, by a short order passed today, the above Criminal Bail Application was dismissed. Above are the reasons for the said short order.

JUDGE