2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Mukhtar Javed has impugned order dated 22.04.2016, whereby his earlier bail application was declined by the Court of learned II-Additional Sessions Judge, Karachi East.

2. Necessary facts spelt out from instant FIR are that complainant Ismail lodged report that his daughter namely Nazia alias Babbo aged about 20 years, is a house hold girl. On 23.03.2016, at about 1430 hours, his neighbor Mst. Samina induced his daughter on different pretext and took her in house at Quaid-e- Azam Colony, Block 4-A, Gulshan-e-Iqbal, Karachi, where contractor Javed and Nasir were present and they served her intoxicated drink, and she became unconscious. Accused committed Zina with her and also made a video clip of said sexual act. Accused harassed and blackmailed his daughter to pay Rs.50,000/- and she stole Rs.50,000/- from his house and paid them. Accused further demanded Rs.100,000/- but due to non-payment of said amount, they uploaded said video clip on internet, which caused mental agony and frustration and he has copy of such video, hence instant FIR.

3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated in the instant FIR: that main role has been assigned to accused Muhammad Khanwaiz, who has already left for Saudi Arabia; that statement of victim under section 164, Cr.P.C. was recorded but she has not nominated accused persons for commission of the alleged offence; that there is 12 days delay in lodging of FIR for which no explanation has been furnished; that complainant and victim Nazia have sworn their affidavits and extended no objection for grant of bail to applicant. Learned counsel has relied on 2010 PCr.LJ 1482, 2012 YLR 2228, 2016 YLR 343, 2011 YLR 1921, 2008 YLR 2357, 2013 MLD 1115, 2012 MLD 810, 2014 YLR 2137.

4. Learned counsel for complainant and victim Nazia present in Court, have extended no objection for grant of bail.

5. While controverting the above submissions, learned APG vehemently contended that victim girl was served intoxicated drink and she became unconscious; that applicant committed Zina with victim, which is supported by medical certificate; that applicant caused harassment and blackmailed the victim to pay Rs.50,000/- and she committed theft in her house and paid said amount to accused; that they again demanded Rs.100,000/- from victim but she could not arrange the same, so they uploaded the said video on internet, which was also watched by the family of the victim; that applicant has committed heinous crime; that the victim and complainant in their affidavits have simply given no objection and there is no mentioned that parties have entered into compromise, hence he is not entitled for bail. Learned APG relied on PLD 1997 SC 437 and 2013 PCr.LJ 904.

6. Heard learned counsel for the parties and perused the material available on record prudently, which emanates that alleged incident occurred on 21.03.2016 at 1430 hours, while FIR was lodged on 02.04.2016 at 0020 hours. Perusal of averments of FIR reflects that accused served intoxicated drink to the victim and she became unconscious and they committed Zina with her and per medical certificate victim is no more virgo-intecta. Accused also made such video clip of said sexual acts. On regaining her senses, they blackmailed her and demanded Rs.50,000/- and she committed theft in her house and paid demanded amount to accused. It is further averred that accused further demanded Rs.100,000/- from the victim but she could not pay the same, so they uploaded said video clip on internet, which was not only watched by public at large but her family members also, hence delay in lodgment of FIR has been explained satisfactorily. The alleged offence committed by applicants is heinous in nature and their act of blackmailing to the victim and uploading of video on internet reflects that they are harden and criminal offenders. It is significant to mention that such nature of offences have been increasing in our society rapidly by using social media, but in order to save the honour and respect of the family, victim or her family members have been evading to approach the police, instantly or to initiate action against criminal only to save the future life of the victim as well as respect of the family in society. Thus, to curb such criminal elements, Courts must take serious notice and such cases should not be treated as routine matters. Complainant and victim filed their affidavits of no objection for the purpose of grant of bail in instant crime, but there is no mentioned about any compromise effected between the parties, which is heinous in nature and punishable for the death or imprisonment for life and also non-compoundable, only to create doubt in the prosecution case to enable accused to obtain the bail, which are contrary to the averments of FIR, statements under sections 161 and 164, Cr.P.C., hence such affidavits have no evidential value nor it can defeat the statement of victim recorded before the Magistrate in presence of accused, whereby she has categorically narrated the incident, thus Court is not bound to consider said affidavits of no objection and should decide the plea of bail strictly on merits. In the case of Naseer Ahmed v. The State (PLD 1997 SC 347), the honourable Supreme Court of Pakistan has observed that Court at the time of hearing of bail application is supposed to do tentative assessment of the material available on the record. Trend that eye- witnesses take a somersault and give statement which were different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail was deprecated by Supreme Court with the observation that Court have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court. Mind of the Court has to be satisfied where about-turn of some of the eye-witnesses in such a manner shakes up the whole prosecution case from the point of view of credibility of the remaining material. Each case, in such a situation has to be decided on its own merits. Case law referred by learned counsel for the applicant with profound respects bear different facts and circumstances from the case in hand, hence are distinguishable.

7. For the foregoing discussion of the facts and circumstances, applicant has failed to convince this Court for extending the concession of bail mere on the ground of filing of affidavits of no objection by complainant as well as victim girl. Consequently, instant application for post-arrest bail stands dismissed being devoid of any legal force. Learned trial Court is directed to conclude the trial preferably within a period of two months on receipt of copy of this order. Office is directed to transmit copy of this order to learned trial Court for information and compliance. The observations made above are tentative in nature and the trial Court shall decide the subject case purely on its merits. JK/M-174/Sindh Bail refused.