2013 PLP 911 (YLR)

AFTAB AHMED GORAR, J.

F.I.R. No.461 of 2012, under section 496-A/ 376/34, P.P.C., was registered at Police Station Sohrab Goth, stating therein that applicant/accused along with co-accused Nazeer alias Neeli, Mustafa and Ishaque took away his wife Nazeeran with intention to commit zina with her. Learned counsel for applicant/ accused submits that applicant/accused has falsely been implicated in this case due to enmity over property. He submits that applicant/accused is 52 years old and the alleged victim is his daughter-in-law and how a father can kidnap his daughter with intention to commit zina. He submits that there is unexplained delay of about 9 days in lodging the F.I.R, which makes whole the case doubtful and it is well settled law that benefit of doubt goes in favour of applicant/accused. He further submits that there is contradiction in statement of victim under sections 161, Cr.P.C. and 164, Cr.P.C. In 161 Cr.P.C. statement the alleged victim has stated that she was taken away by her step father for visit, while during cross-examination in 164, Cr.P.C. statement she has deposed that she was forcibly taken away by applicant/accused. He further submits that the sole witnesses i.e. complainant (Imran Khan) and his mother (Mst. Khatija/Khuresheed Bibi) have sworn their affidavit at the time of filing bail application in trial Court, in which they have exonerated the applicant, but the learned trial Court did not consider the same. As such he submits that he is entitled for the concession of bail. In support of his contentions he placed reliance on case-law reported as Muhammad Murad v. The State (PLD 2012 Sindh 42) and Never Das v. The State (2011 PCr.LJ 1015). On the other hand learned A.P.-G. opposed the grant of bail on the ground that applicant/accused is nominated in F.I.R. He submits that victim Mst.Nazeeraan has implicated the applicant in her statement under sections 161, Cr.P.C. and 164, Cr.P.C. I have heard learned counsel for the parties and have also perused the record. No doubt the name of applicant/ accused is nominated in the F.I.R, but it is astonishing to believe that complainant came to know about the incident on 22-6-2012 and he lodged the F.I.R. on 2-7-2012, with unexplained delay of 9 days. The police papers reveals that at the registration of case in hand the applicant/ accused was already arrested in a case Crime No.391 of 2012, under section 9(a) Narcotics Act of PS, Sachal. The alleged victim in her statement under section 164, Cr.P.C. has stated that applicant/accused had kidnapped her and forcibly committed zina with her two/three times which is amazing to note that why he will allow her to walk out of house in a street wherefrom she was taken by her brother who brought her to police station. And why he did not keep her confined, what were the circumstances that applicant/accused kept her in his brother's house where some children and wife of his brother was living but the alleged victim did not disclose the fact that she has been abducted. It also creates question in the mind that when all the family members of brother of applicant/accused were sleeping in a house, how a father-in-law can sleep with alleged victim and why she did not make hue and cries. The affidavits sworn by complainant and his mother who are the star witnesses of the prosecution case in which they have exonerated the applicant/accused from the commission of offence and have stated that due to enmity of complainant's brother with applicant/accused on property, has managed this false case with collusion of police, has made-the case of prosecution pathetic. During cross-examination in her 164, Cr.P.C. statement she has admitted that she did not raise hue and cry when the applicant/accused committed zina with her. There are contra-dictions in statement under sections 161, Cr.P.C. and 164 Cr.P.C. of alleged victim. The facts and circumstances of the case and in view of the case-laws referred above I am of the opinion that the case of applicant/accused is of further inquiry and the applicant is entitled for the grant of bail. Applicant is admitted on bail subject to furnishing solvent surety in the sum of Rs.200,000 (Rupees two lac) with PR bond in the like amount to satisfaction of trial Court. MWA/M-11/K Bail granted.