Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Bail, grant of---Victim had left her house and joined the accused by consent--

 -Story made by the complainant was an afterthought---No intention of committing an offence was on record---No mark of violence on any part of the victim was found---Victim had not alleged offence of Zina against the accused---Accused had made out a case for bail---Accused was admitted to bail subject to furnishing surety in the sum of Rs.100,000/- in the like amount to the satisfaction of Trial Court.

2016 P Cr. L J Note 92
[Sindh]
Before Nazar Akbar, J
SHAFQAT HUSSAIN alias VIKI---Applicant
Versus
The STATE and another---Respondents
Criminal Bail Application No. 1291 and M. A. No. 9075 of 2015, decided on 23rd November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Bail, grant of---Victim had left her house and joined the accused by consent---Story made by the complainant was an afterthought---No intention of committing an offence was on record---No mark of violence on any part of the victim was found---Victim had not alleged offence of Zina against the accused---Accused had made out a case for bail---Accused was admitted to bail subject to furnishing surety in the sum of Rs.100,000/- in the like amount to the satisfaction of Trial Court. [Paras. 3 & 4 of the Judgment]

Muhammad Shakeel v. The State PLD 2014 SC 458 rel.

Muhammad Rafique for Applicant.

Zafar Ahmed, A.P.-G. for the State.

ORDER

NAZAR AKBAR, J.---The accused is facing trial for an offence registered as Crime No.102/2015 under sections 365-B, 376 at P.S Sharifabad.

1. The prosecution story as emerges from the FIR and record is that one Jawaid Ahmed Khan on 31.7.2015 at about 10 a.m reported that his daughter Sadaf on 30.7.2015 around 7:30 p.m in evening left home taking her cloths and cash amount of Rs.25/30 thousand. However, on search it transpired that applicant/accused Vikiy son of Tajamal Hussain, along with his mother. Suriya, sister Samina and brother Khawar have enticed away his daughter. The Complainant around 09 p.m also received call from phone # 0316-2327849 that his daughter is with them and they should come in half hour to arrange nikah of her daughter otherwise it will not be good for them. The complainant implicated applicant, his mother, sister and brother for kidnaping his daughter with intention to commit zina with her.

2. Daughter of complainant was recovered on next day i.e 01.8.2015 and her statement under section 164, Cr.P.C. before the Magistrate, was recorded and she was referred for medical examination.

3. Heard the learned counsel for the applicant and learned APG and perused the record. I have observed as follow:-

i. Admittedly the victim left her house with clothes and Rs.25/30 thousand as alleged by her father indicates that it was not an attempt to kidnap or at least prima facie she has joined the applicant/accused by consent.

ii. The involvement of mother, sister and brother of applicant in enticing away of the daughter as alleged in FIR further suggests that story made out by the complainant was afterthought as the FIR has been lodged after delay of more than 14 hours from the point of receiving phone call wherein request was made to arrange nikah.

iii. The contents of the conversation on phone reported in FIR suggest there was no intention of committing an offence alleged.

iv. The medical report does not suggest any mark of violence on any part of the body of victim.

v. Counsel for the applicant has drawn my attention to statement under section 164, Cr.P.C. and medical report available in file. In her statement under section 164, Cr.P.C. the victim herself stated that she joined the applicant in rickshaw and she does not allege offence of zina against the applicant.

vi. The prosecution has not obtained sperm sample of applicant/accused and only his blood sample was drawn.

vii. The age of the victim is 18 years as per medical report and not 13/14 as suggested in the FIR by the complainant.

4. In view of the above, at this stage the applicant has made out a case for bail. Accused/applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousand only) and P.R bond in the like amount to the satisfaction of the trial Court.

5. The above bail order has been passed in compliance with the directions of the Hon'ble Supreme Court as contained in the case of Muhammad Shakeel v. The State (PLD 2014 SC 458), whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned A.P.G.

6. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the applicant/accused.

ZC/S-69/Sindh Bail granted.