1. ORDER ABDUR RAHMAN FARUQ PIRZADA, J. - By this application, the applicant seeks bail in the case vide Crime No. 56 of 2007, Police Station, Market, Hyderabad for offence under Section 365-A, P.P.C.
2. The F.I.R, was lodged by complainant Qazi Nisar Ahmed at Police Station, Market on 2.5.2007 at 1,30 p.m. As briefly stated, the prosecution case is that the complainant is a former government contractor; his daughter namely Mst. Shaista Nisar, whose date of birth was 1.4.1992, was studying in Class VIII of A.R. Banat High School. Previously she was being harassed by her neighbours accused Malak Shaheen, Bhayya and one other person by caste Qureshi, who were known to complainant's driver Yar Muhammad. The complainant had tried to persuade the accused not to harass his daughter. On the date of incident viz. 2.5.2007 the complainant's daughter went to school with driver Yar Muhammad in the car at 7.30 a.m., but later on she did not come out from school at 11.00 a.m. The driver searched for her, and subsequently on his information, the complainant also searched for her, but her whereabouts were not known.
3. The complainant was sure that accused above-named had abducted his daughter for obtaining ransom, since he owned property worth Crores of rupees.
4. Learned counsel for the applicant has submitted that the prosecution case is absolutely false and has been mala fidley foisted upon the applicant. He has submitted that according to prosecution case, on the very same day viz.2.5.2007 at 11.50 p.m., the accused alongwith abductee was arrested while both were standing in front of a hotel at Jail Road, Hyderabad, which is a thickly-populated area of the city; this factum would strongly suggest the absence of any restraint upon alleged abductee. He has further submitted that the letter previously written by abductee. Mst. Shaista to applicant Muhammad Shaheen, would clearly reveal a different story; it would suggest that previously there was some affairs between the abductee girl and the applicant, during which several letters were written by abductee girl to applicant. He has further submitted that on the very next day i.e. 3.5.2007 the statement under Section 164, Cr.P.C, of Mst. Shaista was recorded before the learned Magistrate, wherein she categorically stated that she had voluntarily gone to meet with the applicant Muhammad Shaheen: Subsequently, the abductee girl Was subjected to severe maltreatment by complainant, and she was even referred to a Medical Officer, who issued medical certificate verifying the fact that the abductee girl had sustained severe injuries on her person, it has been pointed out that she was referred to Medical Officer on 22.5.2007, but in the medical certificate it was mentioned that she had suffered these injuries on 2.5.2007 at abut 11.00 a.m. He has submitted that neither Mst. Shaista was found in injured condition at the time of her alleged recovery at 11.50 p.m. Nor Mst. Shaista herself mentioned any such fact during her statement under Section 164, Cr.P.C, before learned Magistrate on the next day viz. 3.5.2007. According to learned counsel, that fact would support his contention that the abductee girl had been severely maltreated by complainant himself. Subsequently, on an application by complainant, as per order dated 11.5.2007 by this Court, another statement under Section 164, Cr.P.C, of Mst. Shaista was recorded on 25.10.2007, in which statement she supported the prosecution case and implicated total four accused persons including applicant. Learned counsel for the applicant has submitted that first, the subsequent statement under Section 164, Cr.P.C, of the. Girl was recorded under the duress by complainant, and secondly, even if the subsequent statement were to be given some weight, even then prosecution case would be left with two contradictory versions given by*- abductee girl, and in such circumstances, the benefit of doubt may be extended to the applicant for purpose of bail. Learned counsel has further pointed out that PW Yar Muhammad, driver of complainant in his statement under Section 164, Cr.P.C, has stated that previously there was an affair existing between the applicant and Mst. Shaista, which would endorse the arguments of learned counsel for the applicant. Learned counsel has placed reliance on the case-law as reported in P.L.J. 1975 Cr.C. (Lah.) 124.
5. The complainant has vehemently opposed the bail application and has submitted that there are clear-cut allegations or abduction and demand of ransom against the applicant, and he does not deserve the concession of bail. He has pointed out that the abductee in her subsequent statement under Section 164, Cr.P.C, has supported the prosecution version. He has denied the existence of any love letters previously written by abductee Mst. Shaista to the applicant. He has further stated that said PW Yar Muhammad has been subsequently joined as all accused in the supplementary challan of the case.
6. Learned State counsel has conceded to the grant of bail to applicant, in view of two contradictory versions put forth by the prosecution, for which, the benefit of doubt may be extended to the applicant.
7. We have carefully considered the submissions made by learned counsel for the applicant and complainant in person and learned State counsel. As per F.I.R., there is no ocular evidence in respect of alleged abduction of Mst. Shaista by accused persons, it is simply stated in the F.I.R, that complainant as surely of the opinion that the accused persons including applicant had committed the alleged offence, it is admitted position that in her statement under Section 164, Cr.P.C, recorded on 3.5.2007, the abductee girl had stated that she had voluntarily gone to meet with applicant Muhammad Shaheen. This statement which was recorded immediately after the alleged incident as well as after her alleged recovery, has to be given weight according to principles of law.
8. Although subsequently another statement under Section 164, Cr.P.C, of the abductee was recorded, but the same was recorded after lapse of about five months of the incident. Even if the second statement were to be believed, still the prosecution case has brought forth two versions, which are apparently in contradiction to each other, In such circumstances, the veracity of one statement or the other recorded under Section 164, Cr.P.C, by the same person has to be properly determined during the process of trial, and at this stage this question cannot be finally determined, for which the benefit of doubt would certainly go in favour of the accused.
9. We have also considered the fact that applicant alongwith abductee Mst. Shaista was arrested on the same day at 11.50 p.m. From in front of a hotel situated at Jail Road, Hyderabad. As has been stated, the place of recovery is a busy road, where presumably several persons may have been present. Admittedly, neither the abductee raised any cries nor she made any complaint to any person regarding her alleged abduction or wrongful restraint, it may also be considered that no prosecution witnesses or mashirs belonging to the vicinity of the place of recovery were associated with the case.
10. It is a curious fact that Mst. Shaista was later on referred to the Medical Officer in respect of the injuries, which she had suffered on 2.5.2007 at 11.00 p.m. Obviously the medical certificate shows the presence of injuries on her person, however it is not understandable as to how these injuries could be suffered by Mst. Shaista at 11.00 p.m. In view of the fact that she was allegedly recovered soon thereafter at 11.50 p.m.; as per mashirnama of arrest and recovery, no such injuries on her person were mentioned. Moreover, even Mst. Shaista herself did not state any such fact during her statement under Section 164, Cr.P.C, recorded before the learned Magistrate on 3.5.2007.
11. As per F.I.R., complainant's driver Yar Muhammad was shown as prosecution witness, but he made a statement pertaining to an affair going on between applicant and Mst. Shaista, which certainly damaged the prosecution case. Although subsequently, he is stated to have been joined as accused in the case, but that factor would not help the prosecution in any manner.
12. We have also considered the fact the abductee girl was not alleged to be subjected to any sexual assault, In the circumstances, when she was allegedly abducted away on 2.5.2007 at about 11.00 a.m. And was recovered after lapse of 12 hours; this factual position would also require further inquiry as to how and why the abductee girl was spared the above-mentioned fate, when she was completely at the mercy of accused persons.
13. Admittedly, the applicant did not demand any ransom, directly from the complainant; nor any ransom amount was actually paid by complainant. As such, the question of applicability of Section 365-A, P.P.C, would require further probe in the matter.
14. We have gone through the ruling of law as cited by learned counsel for applicant viz. Muhammad Sardar Khan v. The State (P.L.J. 1975 Cr.C. 124); although this ruling is pronounced by the honourable Single Bench of High Court, nevertheless it lays down a valuable principle of law; bail was granted, where case was rendered sufficiently doubtful by two contradictory statements made by abductee so as to bring the case under Section 497(2), Cr.P.C.
15. Respectfully the reliance may be placed on the case of Muhammad Abbass and another v. The State (P.L.D. 1988 S.C. AJ&K. 14), wherein it was held that even for purposes of law, law is not to be stretched in favour of the prosecution, and that if any benefit of doubt arises it is to be resolved in favour of the accused.
16. In the case of Manzoor and others v. The State (P.L.D. 1972 S.C. 81), it was laid down as under:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the cast albeit his acquittal in the long run."
17. Respectful reliance may also be placed on the case of Ameer v. The State (P.L.D. 1972 S.C. 277), in which it was observed that even for purposes of bail law is not to be stretched in favour of the prosecution, and that if any benefit of doubt arises it must go to accused, In the attending facts and circumstances, while placing implicit reliance on the above-cited rulings of law as laid down by honourable Superior Courts, we are of the view that further inquiry may be required in order to establish the guilt of the accused as envisaged under Section 497(2), Cr.P.C.
18. Accordingly, this application is allowed and the applicant may be released on bail, subject to furnishing solvent surety in the sum of rupees one hundred thousand and P.R. Bond in the like amount, to the satisfaction of learned Trial Court.
19. Itmay be needless to say that the above observation are purely tentative in nature and the learned Trial Court shall not be influenced by the same, while finally deciding the case. Bail after arrest granted.