2023 PLP 1072 (MLD)

MUHAMMAD SALEEM JESSAR, J.

Applicant Sher Muhammad Mangnejo (Criminal B.A. No. S-664/2022) seeks pre-arrest bail, while applicant Naseem Mangnejo (Criminal B.A. No. S-27/2023) seeks his release on post-arrest bail. Since both bail applications arise out of same FIR bearing Crime No. 106/2022, Police Station Sobhodero, under sections 376, 365-B, 344, 148, 149, P.P.C., therefore by this common order I propose to dispose of these bail application. Since the case has been challaned which is now pending for trial before the Court of IV-Additional Sessions Judge Khairpur Mir's, vide Sessions Case No.Nil/2022 (Re-State v. Naseem Mangnejo and another). The applicants preferred their separate bail applications bearing No.2617/2022 and 2725/2022 before the court below where after hearing the parties same were declined by the trial court in terms of its own order dated 13.12.2022. Hence these bail applications have been maintained before this court.

2. Since facts of prosecution case are mentioned in the FIR attached with the memo of bail application and the same are not to be re-produced in view of the case of Muhammad Shakeel v. The State and others (PLD 2014 SC 458).

3. Learned counsel for the applicants submits that applicants and complainant of this case are relatives to each other and the applicant Sher Muhammad who stood retired from the government job, hence the complainant as well as victim being relatives inter-se had stolen away the amount of one million from the house of applicant, therefore, on demand they cooked up this false case against them. They further submit that the alleged abductee herself filed Criminal Misc. Application No. 5002/2022 before Ex-Officio Justice of Peace Khairpur (Mirs) under section 22-A(6)(i), Cr.P.C, subsequently it was dismissed as not pressed. They further submit that the abductee allegedly came out from the clutches of the applicants and then appeared before the Magistrate for recording her statement under section 164, Cr.P.C. on 17-11-2022. They next submits that in her statement under section 164, Cr.P.C, the abductee has not alleged about Zina-Bil-Jabr, however has stated that accused Naseem was committing Zina with her. They further submit that FIR is delayed for about a month, besides the medical evidence does not support the prosecution. In support of their contention, they relied upon cases reported as Muhammad Arif Sabri and another v. The State and another (2012 MLD 677), Muhammad Farooq v. The State and another (2008 YLR 1607), Hassan Ali Shah v. The State and another (2017 PCr.LJ Note 85), Mrs. Sardaran Bibi and 2 others v. The State and another (2013 YLR 2648), Rana Khurram Shehzad and another v. The State and another (2018 MLD 830) and Ali Gul v. The State (2003 PCr.LJ 80).

4. Learned Additional P.G for the State submits that alleged abductee was examined by the investigating officer under section 161, Cr.P.C. on 05-11-2022, whereas she was examined by the Magistrate under section 164, Cr.P.C. on 17-11-2022. He further submits that she has not given specific date of her release from the alleged clutches of accused and then return to her home. He further submits that per DNA report, no positive result is available, which may connect the applicants with commission of offence. Hence in view of above medical evidence, he has no objection. In support of his contention, he places his reliance on case reported as Hazrat Amin v. The State and another (2020 SCMR 418).

5. Learned counsel for the complainant oppose the bail applications on the ground that applicants are nominated in the FIR besides the offence with which they have been charged carries capital punishment; hence they are not entitled for bail. They; however, could not controvert the fact that alleged abductee herself filed Criminal Misc. Application under section 22A(6)(i), Cr.P.C. before the Ex-Officio Justice of Peace Khairpur (Mirs) for seeking directions to get her case registered against the accused, which she did not press on 05-12-2022, they, however, admit that parties are relatives to each other, therefore are inter-se.

6. Heard learned counsel for the parties and have gone through the material made available before me on record.

7. Admittedly the incident as alleged is said to have occurred on 02-10-2022 whereas FIR thereof was lodged on 05-11-2022 with delay of about 33 days though distance between police station and place of incident occurs about 4/5 kilometers and no plausible explanation has been furnished by the prosecution for such an inordinate delay. The delay in criminal cases has always been held by the Superior Court(s) to be fatal for the prosecution. As far as allegation of Zina-bil-Jabr is concerned, the medical evidence does not support the prosecution version, hence mere word against word is no ground to withhold the concession of bail to an accused when the ocular version does not get support from the medical evidence. The parties seems to be close relatives to each other, therefore question of commission of such an offence within family raises many questions. The alleged abductee though has alleged that she was abducted away by the applicants; however was not recovered from their possession or from their house, but she succeeded to get herself free from their clutches according to her own, which is also mysterious. Even after her abduction, none of the applicant had enticed her for entering into Nikah and mere allegation of Zina, which has not been corroborated by the medical evidence, one cannot be deprived of concession of bail. The case has been challaned and further detention of the applicants would not serve any legal or technical purpose.

8. It is well settled Principle of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of the charge. The upshot of above discussion is that applicants have made out a good prima-facie case for their release on bail. Consequently both bail applications are hereby allowed. The interim bail already granted to applicant Sher Muhammad in terms of order dated 15-12-2022 is hereby confirmed on same terms and conditions. Resultantly, the applicant Naseem Mangnejo shall also be released on bail subject furnishing solvent surety in the sum of Rs. 50,000/- and P.R bond in the like amount to the entire satisfaction of trial Court/IVth Additional Sessions Judge Khairpur (Mirs).

9. Office is directed to place a signed copy of this Order in captioned connected matter. MWA/N-7/Sindh Bail granted.