2011 YLR 2446 (PLP)

MUHAMMAD TASNIM, J.--Through this Criminal Bail Application, the applicants have challenged the Order, dated 23-07-2010 passed by 3rd Additional Sessions Judge, Khairpur in Criminal Bail Application No. 779 of 2010, whereby Bail Application filed by present applicants was dismissed. The case as set out by the prosecution in the F.I.R. is that on 23-5-2010 at about 1600 hours complainant Muhammad Shaban lodged the F.I.R., alleging inter alia therein that he vesicles with his brothers and sister and there is longstanding dispute between complainant party and Sachal on matrimonial affairs. On 22-5-2010 at 10-00 a.m., accused persons, namely, Ghulam Hyder with KK, Sachal with hatchet, Lakhmir with KK, Sharif with gun, Piral with KK, Riaz with gun, Qabool with KK, Misri with gun, Sohni with gun, Zamir with KK, Ali Gul, Shoukat holding Lathies, and Abdul Sattar with hatchet entered the house of complainant and on their coming, they disclosed that as there exists dispute on matrimonial affairs, therefore they will not spare the complainant party. Saying so, accused Ghulam Hyder, Sachal, Lakhmir and Qabool Shaikh by holding her hair,'dragged Mst. Shahidan, sister of the complainant and abducted her while accused Muhammad Sharif, Piral, Zamir, Riaz, Sohno and Misri made aerial firing and accused Ali Gul, Shoukat, and Abdul Sattar on the show of hatchets and Lathies wrongfully confined the complainant in a room. On the fire shot reports, witnesses Nadir, Azam and so many persons came running. The complainant after getting chance carte out from the house and appraised the entire incident to Nekmards. He also came to know that the accused persons got the marriage of Mst. Shahidan solemnized with accused Moar. Consequently, above noted F.I.R. was lodged. Learned counsel for the applicants submits that allegations in the F.I.R. are general in nature and no specific role has been a signed to the present applicants. He further says that even the Mashirnama of recovery of the abductee does not show the names of the present applicants. He further says that abductee was not recovered from the possession of present applicants. He further says that present applicants have been implead falsely by the complainant party for the reason that they have matrimonial dispute among themselves. Learned counsel has invited my attention to the statement made by abductee under section 164, Cr.P.C. to show that abductee has named only five persons in her statement under section 164, Cr.P.C. whereas in the F.I.R., as many as 13 persons have been alleged to have committed the offence which is subject matter of this case. Learned counsel further says that there was one day and six hours delay in lodging of F.I.R. which remained unexplained. Learned counsel further submits that as per Prosecution, the abductee was abducted on 22-5-2010 but the F.I.R. was lodged on 23-5-2010 at about 1600 hours. He further says that abductee was recovered on 24-5-2010 but her statement under section 164, Cr.P.C. was, recorded on 26-5-2010. He further says that there is inordinate delay in recording of statement of abductee, the benefit whereof be extended to the present applicants. In the end, he says that there is contradiction in the Prosecution story in F.I.R. and in the statement of abductee under section 164, Cr.P.C, hence the applicants are entitled to bail on that ground as well. In support of his contentions, learned counsel relied upon the case of Kashif alias Kashi v. The State 2009 YLR 1500 to contend that there was delay in lodging of F.I.R. which was not explained and benefit of such delay was extended to the accused in the reported case. He further relied upon the case of Muhammad Javed Iqbal v. The State 2010 YLR 1035 to support his contention that there was variance in the story of Prosecution in F.I.R. and the statement of the abductee and benefit of such variance was extended to the applicants in the reported case. He further relied upon the case of Muhammad Farooque v. The State 2008 YLR 1607 in support of his contention that abductee was not recovered from the possession of the present applicants. He says that in the present case neither the abductee was recovered from the applicants nor there is plausible explanation for delay in lodging of F.I.R., hence the applicants be enlarged on bail. On the other hand, learned A.P.-G. submits that abductee has been examined under section 164, Cr.P.C. where she has specifically implicated the present applicants for commission of offence under section 365-B, P.P.C. He says that since Zina was committed with the lady and there was no valid marriage, hence applicants are not entitled to bail. Learned counsel further says that there is life imprisonment provided for offence under section 365-B, P.P.C., hence the applicants may not be enlarged on bail. I have heard the learned counsel for parties and have gone through the record and also case-law cited at the bar. From the perusal of record, it appears that there is inordinate delay in lodging of F.I.R. It is also evident from the perusal of the F.I.R. that as many as 13 persons have been implicated as accused in the F.I.R. whereas a perusal of statement of abductee under section 164, Cr.P.C. shows that she has implicated only five persons. Even otherwise, no allegations against any individual applicant has been made. The allegations are general in nature. The abductee has not been recovered from the possession of present applicants. There is no allegation of Zina against the present applicants. Since there is variance in the story of Prosecution in the F.I.R. so also in the statement made by the abductee under section 164, Cr.P.C. In my view, benefit of such variance be extended to the applicants/ accused, so also the benefit of delay in lodging of F.I.R. be extended to applicants. For the aforesaid reasons, the case of Prosecution has become doubtful and requires further enquiry in terms of section 497(2), Cr.P.C. For the foregoing reasons, I admit the applicants to bail on their furnishing solvent surety in the sum of Rs. 2,00,000 (Rupees Two Lac) and execution of Personal Bonds in the like amount to the satisfaction of the trial Court. It is to be clarified that accused Moar was applicant before the trial Court but he is not applicant before this Court. H.B.T./G-36/K Bail granted.