2024 PLP 1309 (MLD)

AMJAD ALI SAHITO, J.

Through this bail application, the applicant above named seeks pre-arrest bail in Crime No.62/2020 under sections 363, 365 P.P.C. at PS Frere, after his bail plea has been declined by the learned Additional Sessions Judge-II, Karachi South vide order dated 15.04.2023.

2. The details and particulars of the FIR are already available in the bail application and FIR, the same could be gathered from the copy of the FIR attached with such application, hence, needs not to reproduce the same hereunder.

3. Per learned counsel, the applicant is innocent and has falsely been implicated in this case due to enmity; that in fact in pursuance of the direction of this Court, the FIR was lodged by the State against the present applicant; that in fact, the father is a real guardian of the daughters as such FIR cannot be registered against the real guardian/father. In support of this contention, he has relied on Section 361 P.P.C. He further submits that both the babies appeared before the learned Addl. Sessions Judge and sworn their affidavit wherein they have clearly stated that neither they have enticed away nor abducted by anyone but they were residing with their father happily; that the interim Challan has been submitted before the concerned Magistrate. In support of his contentions, learned counsel has relied upon the following cases: (i) Muhammad Ahmad v. The State 2005 YLR 661 (ii) Muhammad Ashraf v. SHO and others 2001 PCr.LJ 31 (iii) Mohammad Hassan and another v. The State 2019 PCr.LJ Note 10

4. On the other hand, it appears from the record that on 16.08.2023 notice was issued to ex-wife Dr. Mehreen Balooch, being an aggrieved person; however, on 20.09.2023 Dr. Mehreen Baloch appeared in Court and requested for time to engage her counsel, on her request matter was adjourned for today. But today she is called absent without any intimation. Whereas, learned Addl. P.G. has vehemently opposed for confirmation of bail an the ground that FIR was registered on the directions of this Court.

5. Heard arguments and perused the material.

6. The case of the prosecution is that on the direction of this Court, the instant FIR was lodged by one PI Wilayat Hussain posted at PS Frere on the ground that Dr. Mahreen Baloch contracted marriage with one Asif Baloch/present applicant and out of such wedlock, two daughters namely Aina Asif and Aiman Asif were born; unfortunately, differences arose between the parties as such, daughters remained with the father/present applicant. After registration of the FIR, the applicant/accused surrendered before the learned Sessions Judge, South, Karachi wherein he filed a pre-arrest bail application and the same was transferred to the Court of IInd Additional District and Sessions Judge, Karachi; however, at the time of filing the application, both the babies/alleged abductees namely Aina Asif and Aiman Asif has sworn their affidavits, which are available at Pages-77 and 81 of the file in which they have clearly stated that no one has abducted them nor enticed away but they were passing their life happily with their father.

7. The instant FIR was lodged under Sections 363/365 P.P.C. against the father of the baby girls for the kidnapping of her daughters, whereas Section 361 P.P.C. provides protection to the lawful guardian. Further, the father is not excluded from his lawful guardianship and there is nothing in the law to prevent the father from keeping the custody of their children. The object of the provision of Section 361 P.P.C. is to protect the rights of parents with regard to custody of the children. Guardianship of the father under Islamic law does not cease when the minor child is in the custody of the mother and similarly, guardianship of the mother is not extinguished when the minor child is with the father. If a father allegedly removes his child from the custody of his/her mother, the father cannot be tried or convicted on the charge of kidnapping. Further, Section 361 provides that no FIR shall be registered against the lawful guardian or father. It is appropriate to reproduce the Section 361 P.P.C. which reads as under:

361. Kidnapping from lawful guardianship: Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship. Explanation: The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

8. At this juncture, when it is confronted with the I.O. of the case whether he had recorded the statement of the alleged abductee under Section 161 Cr.P.C. or 164 Cr.P.C., he stated that he had not recorded statements under Sections 161 Cr.P.C. and 164 Cr.P.C. of the alleged abductees and states that the babies are under treatment but from the face of the record, both the babies appeared before the trial Court and sworn their affidavit which shows that the alleged abductees have not supported the version of the complainant/victim Dr Mehreen which requires further investigation, at the most it is a dispute between mother and father over custody of minor babies. Learned counsel for the applicant has also pleaded malafide on the part of the ex-wife of the applicant Dr. Mehreen Baloch that in order to get the custody of both the babies, the instant FIR was registered for kidnapping of the babies, otherwise he had not committed any offence. At the bail stage, only a tentative assessment is to be made and deeper appreciation is not permissible.

9. In view of the above, learned counsel for the applicant has made out a case for the grant of bail in terms of subsection 2 of Section 497 Cr.P.C. Accordingly, the instant Bail Application is allowed. The interim pre-arrest bail already granted to the applicant vide order dated 19.04.2023 is hereby confirmed on the same terms and conditions. The Applicant is directed to attend the trial. However, it is made clear that if the applicant misuses the concession of bail, the learned trial Court would be at liberty to take appropriate action.

10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant/accused on merits. JK/A-34/Sindh Bail confirmed.