' MUNIB AKHTAR, J.---By means of a short order, dated 12-2-2010, I had confirmed the interim pre- arrest bail earlier granted by means of the order dated 18-1-2010. The following are my reasons for having done so.
2. This application arises out of crime No,109 of 2009 registered at Police Station Gambat on 31-10- 2009 at 4-00 p.m. In respect of an incident alleged to have occurred more than 10 days before on 19-10-2009 at around 12-00 noon. The complainant stated in the F.I.R. That on the day of incident, he was away from his house for work, when at around noon he received information that four men, including the present two bail applicants had forcibly entered his house and abducted his wife Mst.
Saeeda, and had also robbed the house of some cash and other articles. The complainant stated that on receiving such information, he returned home where he found three of his close relatives (all of whom were identified in the F.I.R.) who informed him that four men, two of whom were identified as the present bail applicants, and the remaining two of whom remained unidentified had entered the complainant's house and abducted his wife and committed robbery, as aforesaid.
The complainant stated that thereafter he went to a nekmard of the locality and narrated the facts to him and they all stated searching for his wife. The complainant stated that the next day,, on 20- 10-2009, his wife, the alleged abductee, met him at Shah Hussain Chowk, Khairpur and she tarrated the incident as noted above. The abductee (who also subsequently made an statement under section 164, Cr.P.C. On 16-12-2009) apparently narrated to the complainant that four men took her forcibly from the house, put her in a car and took her to Khairpur where she was detained in a house. The bail applicant No,1 threatened that he would forcibly contract marriage with her. She was kept there overnight, and then according to her, she was brought to Shah Hussain Chowk on the next morning by the abductors, where they released her. The complainant stated that after having recovered his wife at Shah Hussain Chowk as aforesaid, he informed his brother and other relatives and then went to the house Nekmard and then applied to the DPO, Khairpur, who directed him to approach the Police Station for registrating the F.I.R, and accordingly complainant registered the F.I.R. As aforesaid.
3. Learned counsel for the bail applicants submitted that the F.I.R. Had been lodged after a delay of several days which had not been properly explained by the complainant. He submitted that the abductee had not, even on her own showing been harmed, molested or assaulted in any manner, but in fact had been released by the alleged abductors voluntarily on the very next day. He submitted that there were clear discrepancies between the narratives as given in the F.I.R. And the section 164, Cr.P.C. Statement of the alleged abductee, which were apparent on the fact of the record. In particular, he pointed out that in the F.I.R. There were allegations that in addition to abducting the complainant's wife, accused had also committed robbery whereas no such allegation was made in section 164, Cr.P.C. Statement. Furthermore, in her statement the alleged abductee had stated that she was released by the abductors on 20-10-2009, who left her at Shah Hussain Chowk, from where she herself returned to her house and narrated her ordeal to her family, who then took her to the Police Station. On the other hand, in the F.I.R. The complainant had alleged that he had met his wife at Shah Hussain Chowk and from there they went to the house of the Nekmard. Learned counsel further submitted that there were no tye-witnesee at all to the incident although it allegedly took place in broad-daylight and the lady was abducted from a residential area. The only P. Ws. That were produced were close relatives of the complainant. It was submitted that in fact the present F.I.R. Was a counterblast to an earlier F.I.R. That had been registered at Police Station, Gambat on 23-9-2009 by one of the bail applicants against the complainant and other persons, and that the present F.I.R. Was on the face of it an abuse of the legal process.
Learned counsel submitted that despite these facts, which were glaringly obvious, the police were nonetheless raiding different localities and attempting to unnecessarily arrest the bail applicants simply in order to harass them and that their actions were thus, tainted with mala fide intent entitling bail applicants to pre-arrest bail.
4. Learned APG opposed the grant of bail. He submitted that the delay had been explained in the F.I.R. Where the complainant had stated that he first went to D.P.O., Khairpur, and when directed to register his F.I.R. Had promptly done so. In this regard, he submitted that the complainant had moved an application to the D.P.O. On 22-10-2009, on which the latter had made a proper order on 29-10-2009 and thus there was no delay. He submitted that the bail applicants had been specifically identified and nominated in the F.I.R. And had been assigned specific role of having abducted the lady, the complainant's wife, which was a heinous offence and was within the prohibitory clause. He prayed that the bail application be dismissed.
5. It must firstly be noted that in the present there is no allegation at all of the bail applicants, or any other person, having attempted in any manner harmed, molested or assaulted the alleged abductee, and on her own showing she was released subsequently by the alleged abductors within one day. In my view, there are several aspects of this case which on the face of it do not appear to ring true, and the narrative as given by the complainant does not inspire confidence. It may be noted that there were no eye-witnesses to the incident. The complainant's relatives who met on 19-10-2009 are not stated in the F.I.R. To be eye-witnesses to the incident nor have they claimed to be such in their S.161, Cr.P.C. Statement. As per the F.I.R, the alleged abductee herself re- appeared the next day i,e,, 20-10-2009. Notwithstanding the foregoing, on 19-10-2009 the complainant not merely knew that his wife had been abducted, but had also aware of the identity of at least two of the alleged abductors i,e, the two bail applicants. In fact, according to the F.I.R. He received this information at his work place. The question that immediately arises is that if there were no eye-witnesses to the incident, how did the complainant come to know of the identity of two of the alleged abductors on 19-10-2009? No plausible answer has been given to this question by the learned APG, nor there is anything presently available as would provide any clue or satisfactory answer to this question. Secondly there are clear and obvious inconsistencies in the material facts (which are apparent on the face of the record) between the averments made in the F.I.R. And the statement under S. 164, Cr.P.C. Recorded by the alleged abductee. These have been pointed out by learned counsel for the bail applicants as noted above, and in my view no proper explanation is forthcoming in respect of the same. Thirdly, insofar as the delay is concerned, it is not at all clear from the record as to why the complainant, after recovery of his wife who allegedly narrated the whole incident to him on 20-10-2009, nonetheless compelled to first approach the nekmard and then to make an application to DPO, Khairpur. The application was not made immediately but was made only on 22-10-2009, i,e,, two days after the recovery of the alleged abductee. In my view, all these factors require further enquiry, and are sufficient to establish a reasonable case for the grant of bail. It may also be noted that the complainant, from the address as given by him, is a resident of Ranipur, which is at a distance of about 35 kms from Khairpur. Yet it appears from the narrative as given in the F.I.R. That for some reason, he was searching for his wife at Khairpur where according to him, he suddenly A met her at Shah Hussain Chowk. Insofar as the issue of granting bail at the pre-arrest stage is concerned, learned counsel pointed out that this ground had specifically been taken both before the learned trial Court and in the application before this Court, where it was expressly pleaded that the police were conducting raids for the arrest of the bail applicants and harassing their family members in order to insult, humiliate and harass them. The police seem to be under a mistaken belief that even if a bare allegation is made of a cognizable offence, the first thing that they must do is to arrest the alleged accused. However, arresting an accused is only one part of the investigation process, and whether, and if so when, an arrest is to be made must depend on the facts and circumstances of each case, and is not something that should be resorted to by the police mechanically and automatically. I am satisfied that in the present case, the various facts involved including those as highlighted hereinabove were such that the police ought not to have resorted immediately to the arrest of the bail applicants and the fact that they did so shows that their actions were tainted with mala fides.
Accordingly in my view bail applicants had made out a case for the grant of pre-arrest bail.
6. For the foregoing reasons, I had confirmed the interim pre-arrest bail already given by means of a short order. The bail applicants are however put to notice that they must associate themselves diligently with the investigation process and the trial proceedings before the trial Court and must not do anything that would delay or frustrate such proceedings; if they do so, then the concession of bail granted to them may be withdrawn. Needless to say, the observations made in this order are of a tentative nature and only for purpose of this bail application. Nothing herein shall affect the determination of the facts at the trial or influence the trial court in reaching its decision on the merits of the case.