2017 PLP 295 (YLRN)

SHAHNAWAZ TARIQ, J.

Through instant-post arrest bail application, applicants Asad and Yasir both sons of Abdul Samad, have impugned order dated 08.09.2016, passed by learned V-Additional Sessions Judge, Karachi South, whereby their earlier bail application was declined.

2. Relevant facts narrated in FIR are that Mst. Sultana reported that on 26.08.2016, at about 2100 hours, her brother-in-law namely Yasir instigated her husband that she has made him eunuch and instigated him upon which her husband and Yasir started beating her with kicks and fists blows, while her mother in law also dragged on the ground and her father in law tries to strangulate her and she sustained injuries on her lips, nose, left eye and suffering severe pain in her abdomen. Thereafter she went into her room and bolted it from inside and informed her uncle through phone through one mohalah person, who took her to private hospital, hence instant FIR.

3. Learned counsel for applicant contended that applicants are innocent and have been falsely implicated in instant crime; that parties are close relatives and complainant is wedded wife of applicant No.1; that she demanded a separate house to which applicant No.1 refused to provide the same due to his limited source of income as he is drawing Rs.12000/- per month, upon which her maternal aunt took away her from the house of applicant No.1. Learned counsel further contended that alleged offence was occurred on 26.06.2016, while FIR was lodged on 16.07.2016, but no plausible explanation has been furnished for the delay caused in lodging of FIR; that she was pregnant for two months, hence no offence has been made out under section 338-C, P.P.C.; that challan has been submitted and applicants are no more required for further investigation.

4. Learned counsel for complainant has opposed the plea of bail raised by the applicants and submitted that applicants and their family members caused severe maltreatment to the complainant which resulted in Isqat-i-Janin, hence applicants are not entitled for bail. Learned APG adopted the same arguments advanced by learned counsel for complainant.

5. Heard learned counsel for the parties and perused the record, which emanates that applicant No.1 Asad and complainant Mst. Sultana are husband and wife, but due to domestic dispute on the demand of separate accommodation, the alleged incident occurred and she was taken away by her family from the house of applicant No.1. Indeed, the alleged incident occurred on 26.06.2016, while FIR was lodged on 16.07.2016 with the delay of 20 days for which no plausible explanation has been furnished. It is significant to mention that per medical jurisprudence, heart beat starts after two month, while after 180 days(six months) the child matures and it could be ascertained that fetus having remained more than six months in the womb of his mother, would fall within the definition of child. In present case, the period of pregnancy is yet to be determined for which relevant medical record is to be produced which at the moment is not available with the prosecution, hence it is not confirmed that period of the pregnancy was of two month or otherwise for which recording of evidence is essential.

6. Apparently, present incident was a case of domestic violence and intention to commit Isqat-i-janin is lacking, thus in absence of mens rea which is a state of mind to commit an offence knowingly and deliberately, such allegations require further inquiry. Moreover, all of the sections are bailable, except the offence under section 338-C, P.P.C. which is punishable for Diyat, Ta'zir and imprisonment of either description for seven years and punishment provided for the kind of hurt or death, if caused. Thus, in view of present state of affairs, alleged offence is punishable for seven years which does not fall within the ambit of restraining clause of section 497(1), Cr.P.C. After completion of investigation, Challan has been submitted before the learned trial Court and applicants are no more required for further investigation and even they are not previously convict, therefore, their further detention would not serve any useful purpose. 6(sic) Considering the circumstances referred supra, applicants have succeeded to make out their case for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicants are admitted to post-arrest bail on furnishing their solvent surety in the sum of Rs.100,000/- (Rupees One Lac only) each and P.R. bond in the like amount to the satisfaction of learned trial Court. The observations made supra are in tentative in nature and learned trial Court shall decide the case on its merits. JK/A-165/Sindh Bail granted.