2014 PLP 695 (YLR)

ABDUL MAALIK GADDI, J.

The applicant Sarfraz Ahmed Luhur seeks post arrest bail in Crime No.106 of 2013, registered at Police Station Market, Larkana, under sections 371-A, 496-A P.P.C.

2. The brief facts of the prosecution case are that on 18-7-2013, the police party headed by complainant SIP Miran Khan Durrani, S.H.O. Police Station Market, Larkana; during patrolling received spy information that a gang of culprits involved in kidnapping and illegal trafficking of women were bringing some women from Karachi in a car AKX No. 212, white colour Corolla to Larkana via Phull Road, on which they reached the pointed place and started checking vehicles and during the course at about 1600 hours complainant saw that car was coming, but on seeing the police the driver of that car stopped it and tried to return back but the police party come forward and apprehended them with strategy and found three men on front seats, While three women along with a man were sitting in rear seat of the car. One of the three women was tied by mouth whom the police party untied when she cries that her hands were also tied. On query she disclosed that the four men and two women available in the car, kidnapped her along with her friend Mst. Sana from Karachi and they sold her friend Mst. Sana at some unknown place and today the accused were taking away her to sell out. On asking about her whereabouts, she disclosed her name as Mst. Farzana wife of Nadeem Khokhar resident of Johar Chorangi Karachi. A.S.-I. Hakim Aheer and PC Hafeez were nominated as mashirs and accused sitting on the front seats were asked about their names and whereabouts who disclosed their names as Sarfraz Luhur (Driver), Dir Muhammad Gurmani, Zafarullah Chandio and Syed Ibrar Ahmed and on their personal search 2/3 notes of Rs.100 CNICs and mobile phones were recovered from their possession. Out of the women accused, one disclosed her name as Mst. Aini Khan Pathan who also gave her CNIC and a mobile phone of Nokia company and the other woman disclosed her name as Mst. Latifan wife of Abdul Khaliq Chandio, resident of Hyderabad. It is further alleged in the F.I.R that through a passer-by lady, the personal search of both the accused ladies was taken on which nothing was recovered. The above accused persons further disclosed that they used to kidnap women from Karachi and sell out them in different cities. Finding them guilty of the offences under sections 371-A and 497-A, P.P.C. such mashirnama of arrest of accused and recovery of abductee Mst. Farzana was prepared under the signatures of above named mashirs and F.I.R was lodged to the above effect.

3. The applicant was arrested on 18-7-2013, and case has been challaned before the learned trial Court.

4. A bail application was moved by the applicant before the learned trial Court, which was rejected vide Order dated 22-8-2013, hence this bail application.

5. I have heard the learned counsel for the applicant, learned State Counsel and have gone through the police papers.

6. Learned counsel for the applicant submitted that the applicant has been falsely implicated in this case by the complainant due to enmity over matrimonial affairs she has further submitted that there are general allegations against the application that he was driver of the car and it is not clear as to who had tied mouth and hands of the alleged abductee and kidnapped her which creates doubt in the prosecution story. She has further submitted that the alleged abductee was neither recovered from any brothel house nor recovered from such type of persons which indicate that se was being used for the purpose of prostitution. There is no evidence on record to show that abductee was produced before any doctor for medical examination to ascertain either she was used for the purpose of prostitution or not therefore, the sections applied, i.e. 371-A and 496-A P.P.C. are not attracted in the case and according to her whole story of the case has been prepared only to achieve illegal aims. She further submitted that statement under section 164 Cr.P.C. was not recorded in presence of the accused nor opportunity was afforded to them to cross-examine the witnesses, which is clear violation of section 265-J Cr.P.C. Learned counsel for the applicant further submitted that from the statement under section 164 Cr.P.C. of Mst. Farzana itself it is clear that she was not sold or purchased for any illicit purpose by the applicant. The F.I.R is also silent whether the abductee has been kidnapped for the purpose of prostitution, therefore, according to learned counsel the ingredients of sections 371-A and 496-A, P.P.C. are missing in the case therefore, prosecution case needs detailed probe at the trial and till then, according to her, case of applicant requires further inquiry.

7. Learned State Counsel has opposed the bail application on the ground that the applicant was arrested on spot and abductee in her statement recorded under section 164 Cr.P.C. has implicated him. He also submitted that offence under which the present applicant is booked falls under the prohibitory clause of section 497, Cr.P.C.

8. No doubt, applicant was arrested on 18-7-2013, but from the perusal of F.I.R. and police papers it reveals that there are general allegations that the applicant along with co-accused was sitting in the car with the alleged abductee and it is not clear as to who had kidnapped the abducted ladies and tied the mouth and hands of one of the abductees Mst. Farzana. It is beyond understanding that the persons without having weapons kidnapped the ladies from Karachi and easily reached at Larkana from Karachi without being checked. It is pertinent to point out that as per statement of the abductees Mst. Farzana, all accused persons, leaving her alone at a house situated in Karachi city, went to sell other girl namely Mst. Sana but surprisingly she did not try to run or escape from the spot and kept waiting for return of the accused to come back and take with them to sell.

9. Perusal of the F.I.R and police papers further reveals that alleged abductee was neither recovered from any brothel house nor recovered from such type of persons which indicate that she was being used for the purpose of prostitution. There is no evidence on record that abductee was produced before any doctor to ascertain either she was used for the said purpose or not. Merely arguing that the abductee in her statement recorded under section 164, Cr.P.C. implicated the present applicant would not be sufficient and, I may mention here that the statement of abductee has been recorded in absence of the accused.

10. Perusal of the police papers shows that police party had advance information that a gang of culprits involved in illegal trafficking of women was bringing them in a Corolla Car No. AKX 212 to Larkana via Phull Road, Larkana, and present applicant was arrested on 18-7-2013 from Phull Road, Larkana, which is surrounded by shops and hotels but despite of advance information police did not obtain the services of any independent person from the place of arrest of the applicant to witness the event; there is no explanation on record why police party did not bother to obtain the services of private persons. No doubt, the evidence of police officials is as good as private persons but here in this case when the availability of private persons is not denied at the place of arrest and recovery, therefore, the non-joining of private person to witness the creates doubt. Perusal of the F.I.R. also shows that personal search of lady accused in this case was conducted through a passerby woman but surprisingly neither her name was disclosed in the F.I.R nor she has been made as witness of arrest and recovery though she was best witness of prosecution.

11. Learned Advocate for applicant during the course of arguments has placed on record the news clippings appearing in daily "Awami-Awaz" and daily "Koshish", dated 19-7-2013, showing that the S.S.P, Larkana, in his press-conference claimed that applicant along with other accused were arrested during raid in a house from Sachal Colony, Larkana, while in F.I.R. the complainant shown them to be arrested from Phull Road, Larkana. Under these circumstances, in my tentative view this aspect of the case also requires further probe during trial, till then the case of applicant requires further probe. It is settled law of the criminal justice that every accused should be presumed as innocent until and unless he is found guilty of the alleged charge. It is also settled law that if any doubt is created in prosecution case, its benefit must be extended to the accused, even at bail stage. In this regard, I am fortified with case-law reported in PLD 1988 Supreme Court (AJ&K), 14.

12. Learned State Counsel has argued that offence, under which the applicant has been booked falls within prohibitory clause of section 497, Cr.P.C., therefore, on this ground applicant is not entitled for bail. Reverting to the contention of learned State Counsel, it is suffice to say thas, there is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

13. As I have observed above, that the applicant has succeeded to make out a case for grant of bail, I, therefore, allow this bail application and direct that the applicant be released on bail on his furnishing solvent surety in the sum of Rs.100,000 (One hundred thousands) and RR bond in the like amount to the satisfaction of the learned trial Court. Before parting with this order, I would like to make it clear that any observation made hereinabove shall not affect merits of the case at trial. MWA/S-104/K Bail granted.