2010 PLP 1503 (YLR)

HABIB ULLAH SHAKIR, J.

The petitioner, through the instant petition, seeks post arrest bail in case F.I.R. No.183 of 2009 dated 2-6-2009 registered under sections 365-B/376(ii), P.P.C. at Police Station Machhiwal, District Vehari.

2. The story of the prosecution, as narrated in the F.I.R., is that on 26-5-2009 at 9-00 a.m., when the complainant was present in his house along with his daughter Iqra Sabir Hussain aged 14 years, one class fellow of her daughter namely Iqra Ramzan came to his house and took away his daughter to their teacheress house. The complainant became vexed due to non-returning of his daughter to home. He along with his brother Muhammad Saleem and one Zafar Alam went to Chak No.561/EB when' they crossed the canal bridge, they met one Mati-ur-Rehman who also accompanied the complainant and others. They all reached the house of Muhammad Ramzan, who disclosed that Talib son of Sadiq, Ramzan Thekedar and two unknown ladies took daughter of the complainant/the alleged abductee with them. On contact, the accused persons firstly confessed their guilt and promised to hand over back the alleged abductee but later on, they refused to do so.

3. Learned counsel for the petitioner contends that the petitioner is innocent and has been involved in this case with mala fide intention and ulterior motive in connivance with the local police. He is not named in the F.I.R. There is a delay of 7 days in lodging the F.I.R. and no plausible explanation has been given in this regard. Further contends that the statement of the alleged victim was recorded on 16-6-2009 under section 164, Cr. P. C. before the learned Magistrate Section 30, in which no allegation of abduction or Zina was levelled against the petitioner. Further contends that she was not recovered from possession of the petitioner. In fact, the alleged abductee being sui juris, aged about 17 years, of her own free will entered into a contract of marriage with one Talib Hussain, co-accused of the petitioner. During the course of investigation, the petitioner has been declared innocent by the Investigating Officer. The local police submitted discharge report before the concerned Magistrate by placing his name in Column No.2 but the learned Magistrate disagreed with the same which makes the case of the petitioner one of further inquiry. When the petitioner was in the custody of Talib Hussain; co-accused with whom she had contracted marriage, she had also filed a private complaint wherein she alleged that no one had abducted her or committed Zina with her that rather narrated that she left her house in three wearing clothes. Further contends that during investigation, respondent No.2 had sworn an affidavit contending that the alleged occurrence is false and the alleged abductee was handed over to him through Panchayat and he has entered into a compromise with the accused. Except solitary statement of the alleged abductee, no incriminating material is available on record to support the prosecution version. The investigation has been completed, person of the petitioner is no more required by the police and as such further detaining the petitioner in jail for an indefinite period will serve no useful purpose of law. Therefore, the petitioner deserves the concession of bail.

4. Learned D.P.G. assisted by learned counsel for complainant has opposed the bail petition arguing that though the petitioner is not nominated in the F.I.R. yet later on, the abductee in her statement recorded on 16-6-2009, involved the petitioner in this case. The offence being a heinous one in nature falls within the prohibitory clause. So the petitioner is not entitled to grant of concession of bail.

5. Heard. Record perused.

6. It has rightly been pointed out by learned counsel for the petitioner that the petitioner is not nominated in the F.I.R. and the case was registered against him and his co-accused after a delay of 7 days, which makes the story of the prosecution highly doubtful. It was also argued that the alleged abductee was handed over to her father through Panchayat. On this, he had sworn an affidavit regarding the compromise and the innocence of the petitioner. On 16-6-2009, the Investigating Officer of this case produced the abductee/ victim before the learned Magistrate Section 30 where she had not alleged any allegation of abduction or Zina against the petitioner. It is also an admitted fact that she was not recovered from possession of the petitioner. Prima facie the applicability of sections 365-B/376(ii), P.P.C. becomes doubtful to the extent of the petitioner. Furthermore, the petitioner has been declared innocent by the Investigating Officer during the course of investigation and his name was placed in Column No.2 of the Challan. Though the ipse dixit of police is not binding upon the Courts yet the same being adverse to the prosecution version itself makes the case one of further inquiry. There is no legal and moral compulsion to keep an accused in jail merely his case falls within the prohibitory clause and had committed the alleged offence unless reasonable ground in this regard appears to exist. Law should not be stretched in favour of prosecution and if any benefit of doubt arises, it must go to the accused. Question of Zina or abduction was not proved during investigation. Investigation of the case has been completed, the person of petitioner is no more required by the police. He is behind the bars since his arrest and as such further detention of the petitioner in jail will serve no useful purpose of law. It is yet to be determined during course of trial if the alleged offence has been committed by the petitioner or not.

7. In this view of the matter, I find that, prima facie, the facts and circumstances of the case clearly make it a case one of further inquiry. So the instant petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.100,000 (rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-220/L Bail granted.