2024 PLP 934 (MLD)

Muhammad Saleem Jessar, J.

Through captioned bail application, applicant Abdul Nabi son of Abdul Raheem Buriro has sought for post arrest bail in the case emanating from FIR No. 101 of 2023, registered at P.S A-Section Thull (District Jacobabad), for offence punishable under Sections 452, 365-B, 34 P.P.C and 3 TIP Act; after his plea for post arrest bail was declined by learned 1st Additional Sessions Judge, Jacobabad, by dismissing his application vide Order dated 09.08.2023.

2. The case of prosecution as described in para 2 of the impugned order passed by learned trial Court, reads as under: "The facts of the prosecution case as per FIR lodged by complainant Rasool Bux Dayo on 28.06.2023 at 0010 hours are that on 17.06.2023 at 04.00 a.m. applicant/ accused Abdul Nabi along with co-accused Nizamuddin, Shoukat Ali and one unknown culprit having T.T pistols entered into the house of complainant and on force of weapons, they abducted Mst. Shumaila, the sister of complainant with intention to commit 'zina' with her."

3. I have heard learned counsel for the applicant as well as learned Advocate for complainant and learned D.P.G. appearing for the State and perused the material available on record.

4. The learned counsel for the applicant has mainly contended that the applicant/ accused is innocent and has falsely been implicated in this case by the police; that FIR is delayed for about 12-days without furnishing plausible explanation; that parties are already on strange terms as prior to this FIR another FIR vide Crime No.83 of 2023 was also registered by one Najam, a close relative of present complainant against applicant party, but such case was disposed of under cancelled class. Learned counsel hardly pressed on the ground that the alleged abdcutee Mst. Shumaila in her statement under Section 164 Cr.P.C has not leveled allegation of committing 'zina' with her by any of the accused including present applicant and that she was not recovered from possession of any of the accused. He placed on record certified true copy of 164 Cr.P.C statement and mashirnama of recovery of Shumaila. In support of his case, the learned counsel placed his reliance upon case of Zia Jamali v. The State reported in 2022 MLD 1078, Muhammad Younas and another v. Muhammad Hanif Khan and another (2015 YLR 1161) and Farman Ali v. Fazal Rabi and another (2015 YLR 1777). Lastly, learned counsel prayed for grant of bail in favour of the applicant.

5. Conversely, learned counsel appearing for the complainant intensely opposed the grant of bail to applicant/ accused on the grounds that the applicant has been nominated in the FIR with specific role of abducting away Mst. Shumaila, the sister of complainant. Per learned counsel the abductee has also implicated all the accused including present applicant in her statement under Section 164 Cr.P.C., and that the offence falls within prohibitory clause of Section 497 Cr.P.C. He prayed for dismissal of the application. The learned D.P.G appearing for the State while adopting the arguments advanced by learned Advocate for complainant also opposed grant of application.

6. From tentative assessment of the record it appears that there is delay of about eleven days in lodging of the FIR. It is well settled law that the delay is falling within the ambit of deliberation and afterthought, therefore, it is always considered to be fatal for the prosecution case. As per record, the parties are already having antagonism/ rivalry with each other. Per contents of the FIR Mst. Shumaila was abducted by accused persons with intent to commit 'zina' with her, but the alleged abductee Mst. Shumaila while recording her statement in terms of Section 164 Cr.P.C., has not stated that she was subjected to "zina" by any of the accused. Even otherwise, perusal of 164 Cr.P.C statement of Mst. Shumaila reflects that, she has taken names of three accused i.e. Nizam, Shoukat and Nablo. However, it is not the case of prosecution that present applicant is also known as "Nablo". I have carefully gone through the material placed before me, which include FIR, charge-sheet, 164 Cr.P.C statement of Mst. Shumaila and mashirnama of her recovery. None of these documents reflect that the present applicant is also known and called as "Nablo". It further appears from record that Mst. Shumaila was also not recovered from possession of any accused including present applicant. All these facts and circumstances make the case of applicant as one of further enquiry as envisaged under subsection (2) of Section 497 Cr.P.C., entitling him to grant of concession of discretionary relief of bail.

7. In view of foregoing, the application in hands stands allowed. Consequently, applicant Abdul Nabi is granted bail subject to his furnishing a solvent surety in the sum of Rs.200,000/- (Two hundred thousand rupees) and P.R bond in the like amount to satisfaction of trial Court.

8. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits. JK/A-14/Sindh Bail granted.