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Petitioner: NADIR ALI VS Respondent: StateHonorable Justice Aftab Ahmed GorarSafdar Ali G. Bhutto
2014 Y L R 1454
[Sindh]
Before Aftab Ahmed Gorar, J
NADIR ALI---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.S-314 of 2013, decided on 14th February, 2014.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B, 376, 392, 452, 343, 147 & 148---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, robbery, house-trespass after preparation for hurt, wrongful confinement for three or more days, rioting, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Implication on basis of supplementary statement recorded belatedly---Accused and co-accused persons allegedly entered into complainant's house unlawfully, took away his sister with the intention to commit zina with her and also robbed gold ornaments and cash---F.I.R. was delayed by about three days---Accused was not nominated in the F.I.R. and his name was introduced for the first time through statements of prosecution witnesses recorded under S. 161, Cr.P.C, which too were delayed by about 15 days without any explanation---Alleged abductee/victim did not take name of accused in her statement under S. 161, Cr.P.C---Alleged abductee was not recovered from the possession/ house of accused---Investigating agency did not believe version of complainant and placed name of accused in column No.2 of the challan---Case against accused was one of further inquiry---Accused was admitted to bail accordingly.
Safdar Ali G. Bhutto for Applicant.
Imtiaz Ali Jalbani, A.P.-G. for the State.
ORDER
AFTAB AHMED GORAR, J.---Through instant application, applicant Nadir Ali Shaikh seeks post-arrest bail in Crime No.69/2012, of Police Station Civil Lines, Jacobabad, registered under sections 365-B, 392, 452, 376, 343, 147, 148 P.P.C. His similar prayer was declined by the learned trial Court, vide order dated 4-6-2013.
2. Case of the prosecution is that on 1-10-2012, complainant Sanaullah Soomro, appeared at Police Station Civil Lines, Jacobabad and registered F.I.R., in the wording that, an NGO office is situated near our house. On 28-9-2012, I, my cousin Ghulam Hyder, my uncle Ghulam Yaseen, my sister Mst. Zakia aged about 15-years and other house-inmates were available in our house, when at about 5.00 p.m., accused persons, namely, Ghulam Ali Solangi, Khadim Hussain Panhwar, Sahib Khan Manganhar and four unidentified persons intruded into our house and just after entry all the accused persons took out pistols from their folds and by pointing the same they asked us to keep quiet; meantime accused Ghulam Ali caught hold of my sister Mst. Zakia from her arm and took her outside the house, while accused Sahib Khan and Khadim Hussain broken the lock of Almirah lying in the house, took the gold ornaments and hard cash and left the house along with unidentified accused persons and we also chased them, we saw outside the house that all the accused persons boarded along with my sister Mst. Zakia in two white-color XLI cars and went away towards western direction. We, then saw the Almirah and found gold ornaments and hard cash missing and were robbed away. We then went to our nekmards, who met us today and they advised us to lodge F.I.R. at police station, from where I left and have now appeared here and report that above-mentioned nominated and unidentified accused persons with their pre-concert, being armed with weapons, by making rioting unlawfully entered into my house and have forcibly taken away my sister Mst. Zakia with intention to commit Zina and have also robbed gold ornaments and hard cash.
3. Learned counsel for the applicant, mainly contended that, the F.I.R. is delayed for three days and the explanation furnished for such inordinate and scandalous delay is not plausible. Next contention of the learned counsel was that name of the applicant does not appear in the F.I.R, however his name for the first time was introduced in the case in statements of prosecution witnesses recorded under section 161, Cr.P.C., which too are delayed for fifteen days without offering any explanation. Learned counsel further contended that, if the witnesses were actually present at the time of incident, they were not prohibited by anybody from disclosing the name of present applicant to the complainant at the time of lodging F.I.R., though they are inmates of his house. It was further contended that the alleged abductee in her statement recorded under section 161, Cr.P.C. has neither given name of applicant, nor mentioned fact of commission of Zina with her by the applicant. Learned counsel further contended that alleged abductee has not been recovered from the possession/house of the applicant. Per learned counsel the medical evidence does not support version of complainant. Learned counsel also contended that co-accused Khadim Hussain Panhwar, Ghulam Ali and Sahib were let off by the police placing their names in Column No.2 of the challan.
4. Conversely, learned A.P.G. opposed the grant of bail to the applicant, on the ground that the applicant has been nominated in 164, Cr.P.C. statement of the abductee with active role of committing Zina with her.
5. Tentatively, it reveals from the record that the F.I.R is delayed for about three days. Record further shows that, applicant has not been nominated in the F.I.R., however his name for the first time was introduced in the case in statements of prosecution witnesses recorded under section 161, Cr.P.C., which too are delayed for fifteen days without offering any explanation. It further reveals that, the alleged abductee in her statement recorded under section 161, Cr.P.C. has not taken name of the applicant. The alleged abductee has not been recovered from the possession/ house of the applicant. Perusal of challan sheet shows that names of the co-accused Khadim Hussain Panhwar, Ghulam Ali and Sahib have been placed Column No.2 of the challan, meaning thereby the Investigating Agency has not believed the version of the complainant. In view of above position the case appears to be one of further inquiry in respect of the applicant and comes within the meaning of subsection (2) of section 497, Cr.P.C, entitling him to grant of concession of bail. Consequently, the instant bail application was allowed by short Order dated 14-2-2014 and the applicant was directed to be released on bail, on his furnishing solvent surety in the sum of Rs.200,000 (Two hundred thousands) and P.R. bond in like amount to the satisfaction of trial Court, and these are the reason for the same.
MWA/N-7/Sindh Bail granted.