' SHAHID ANWAR BAJWA, J.---For reason to be recorded later, this Criminal Bail Application was dismissed vide short order dictated in open Court on 17-11-2011. The following are reasons for the short order.
2. F.I.R. No, 599 of 2011 was registered at Police Station, Korangi Industrial Area, Karachi on 15-6-2011 for an incident alleged to have occurred 28 hours earlier. The complainant stated that he was running a cart selling bread and chick peas in front of English Biscuit Factory. At the material date when he returned from his work and reached home his wife and son Amir informed him that at about 1-30 p.m. The wife had gone to house of a neighbour when four persons with muffled faces entered the house and confined Amir in kitchen. When other children came from tuition Amir was taken out of kitchen. They found that Mst. Sajida, aged 17/18 years, was missing. When the complainant wife opened the cupboard she found Rs,2,50,000 and a pair of ear-rings were also missing. After finding here and there F.I.R. Was lodged and suspicion was expressed on Imran, his father Zafar, one Waqas and an unknown lady to have kidnapped Sajida and also stolen the amount and jewelry as stated above. Almost three months after the incident the present applicant was arrested from Bahawalpur on 16-9-2011. It is story of the prosecution that the abductee reached her home and then narrated the entire story and thereafter a police party went to Bahawalpur and arrested the present applicant.
3. Learned counsel for the applicant made the following submissions:--
(i) The applicant is not named in the F.I.R.
(ii) Learned counsel next read from the challan and submitted that the abductee on her own left house of her parents and proceeded to Bahawalpur with the accused where she married the accused. Learned counsel in this regard referred to an affidavit of free-will at page 63 and Nikahnama at page 61.
(iii) Learned counsel next submitted that the alleged abductee was produced before a Magistrate on 20-9-2011 but she refused to record her statement under section 164, Cr.P.C.
(iv) Learned counsel submitted that it is a case where the alleged abductee had gone and married of her own free-will and thereafter lived with the applicant for three months. She sought to visit Karachi and visited her parents and they misled her and a false case has been foisted against the applicant. Learned counsel relied upon State v. Khuda Dad and others, 2004 SCM R 425, Muhammad Wail Farooq v. The State, 2007 M LD 1313 and Nasir Khan v. Waseel Gul and another, 2011 SCM R 710.
4. Learned A.P.-G. Vehemently opposed this bail application and submitted that whereas name of the alleged abductee is Sajida, the Nikahnama on the basis of which Nikah is claimed to have been performed between the applicant and the alleged abductee carries the name Mariam Zahra.
Learned A.P.-G. Read from 161, Cr.P.C. Statement of the alleged abductee and opposed grant of this bail. He further submitted that the fact that name of the applicant is not mentioned in the F.I.R. Is indicative that there was no mala fide on part of the complainant. The alleged abductee, her mother and father were also present in the Court and the alleged abductee related the same story as had been given in her 'statement under section 161, Cr.P.C.
5. I have considered the submissions made by the learned counsel and have also gone through the record.
6.In her statement under section 161, Cr.P.C. Recorded on 16-9-2011 the alleged abductee stated that on 14-6-2011 at about 1-00 p.m. She and her brother were present at home and her mother had gone to a neighbour's house when four persons with muffled faces came they were duly armed. They locked the brother in the kitchen, beat the abductee and asked from her regarding money. She stated that her family was a poor one and therefore did not have money but the trespassers stated that her father had received money. Thereafter the trespassers took the money and when the abductee shouted and created noise and called her brother, one of them caught her and then they made smell something and she became unconscious and when she regained senses she found herself in a house in the custody of the present applicant who repeatedly raped her and used to lock her inside the room when he went out. In the meanwhile he got a photograph of the abductee and made her talk to her uncle and say that she was in Peshawar and when she tried to escape her leg had broken and she is in hospital and thereafter the present applicant took the telephone and stated that he would release the abductee if money is given to him. All along the applicant is alleged to have repeatedly committed sexual intercourse with the abductee. She was brought to Railway Station and found her in Bahawalpur where uncle of the abductee was present and upon seeing the police party, the applicant left the abductee and fled away. She stated that applicant repeatedly committed rape with her and that his companions took money etc. From the house of her parents.
7. In Khuda Dad's case (Supra), in F.I.R. It was stated by the Complainant that one of his sisters though married was residing with him. His"mother used to run business of Tandoor where drivers including Khuda Dad used to come for taking meals. It was alleged that Khuda Dad developed illicit relations with sister of the complainant and 15 or 20 days prior to lodging of the F.I.R. Along with two other abducted sisters of the complainant. Two prosecution witnesses saw them taking away the abductee in a truck. Khuda Dad was convicted by the trial Court and co-accused Khalid Jawaid was acquitted. A Criminal Appeal was filed by Khuda Dad and appeal against acquittal was also filed by the complainant. Federal Shariat Court set aside the conviction of Khuda Dad under sections 11 and 13 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but maintained it under section 16 thereof. The Supreme Court regarding abduction observed as under:- "To be still more clear the ingredients of the word 'Abduction' as defined in section 362, P.P.C. Are also to be examined in the light of the case of the prosecution, which in our opinion, are not attracted, as it is nobody's case that she was abducted on show of force or in any deceitful manner."
' This case is clearly distinguishable from the case of the present applicant for two reasons; firstly it is a decision in appeal whereas the present case is of bail and secondly there was no statement of the alleged abductee in the reported case whereas there is a clear statement of the alleged abductee in the present case. In Nasir Khan's case (Supra), respondent and two others were charged for having kidnapped a boy, son of the petitioner, for ransom. Bail application was rejected by the trial Court and was allowed by the High Court. Matter was taken to the Supreme Court for cancellation of bail. The Supreme Court observed as under:- "(7) No doubt, it is true that respondent is one of the accused persons charged in a heinous offence but it is equally true that mere heinousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit for grant of bail. In the instant case, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception. In Suba Khan v. Muhammad Ajmal and 2 others (2006 SCM R 66) it was observed by this Court that "this Court in a number of cases interpreted the provisions of section 497(2), Cr.P.C. And held that main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. Is that if the Court on the basis of tentative assessment of evidences, forms an opinion that prima facie there were reasonable grounds to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C.
As of right."
8. In Muhammad Wail Farooq's case (Supra) decided by Single Bench of this Court, it was alleged in the F.I.R. That complainant's wife was enticed away by the applicant and she absconded with him after stealing 11 tolas of gold ornaments and Rs,2,50,000 in cash. She was recovered and she accused the applicant and three others in abducting her by force and thereafter bringing her to Court and making her file a suit for dissolution of marriage. She stated that thereafter they dropped her at Ansar Burney Welfare Trust from where she was handed over to her parents. She also accused applicant for having committed Zina with her. A Single Bench of this Court observed as under:-- "I have examined the records of the case in the light of the arguments of the learned counsel. I am of the opinion that presently except the statement of the abductee there is nothing on record to implicate the applicant in Zina case although there might be circumstantial evidence connecting him with the case of abduction. The aspect of Zina needs further enquiry and therefore, in my view, the applicant is entitled to bail. I therefore, admit the applicant to bail on furnishing solvent surety in the sum of Rs,2,50,000 {Rupees Two Lacs Fifty thousand, only) and P.R. Bond in the like amount to the' satisfaction of the Nazir of this Court."
9. Nasir Khan's case was case for cancellation of bail and the case report does not clearly indicate as to on what grounds bail was granted by the High Court. In Muhammad Wail Farooq's case (Supra) there was only statement of alleged abductee. Entire incident remained confined to Karachi. In the present case, abductee stated that she was taken to Bahawalpur, she came back from Bahawalpur and then applicant was arrested from Bahawalpur.
10. Learned counsel for the applicant contended that the applicant is not named in the F.I.R.
Obviously the applicant could not be named in the F.I.R. Because it is not claimed by anyone that applicant was known to father or mother of the alleged C abductee. Moreover learned A.P.-G.
Seems to be correct in arguing that the fact that name of the applicant is not mentioned in the F.I.R. Is indicative that there was no mala fides on part of the complainant or his daughter.
11. It was contended by the learned counsel for the applicant that on the basis of an affidavit of free-will Nikah was entered into at Bahawalpur. In the Nikahnama name of the abductee was stated as Mariam Zahra whereas in the F.I.R. Her name is stated Sajida. Learned counsel submitted that the affidavit of free-will carries a photograph of the alleged abductee. However, the learned counsel was not able to explain as to why, if the statement by the applicant is believed that the alleged abductee knew the applicant and went with him of her free-will, when the applicant did not even know correct name of the abductee. If the abductee married for love and with free-will, why would she give a false name. It was also contended by the applicant that abductee was produced before Magistrate for recording statement under section 164, Cr.P.C. But she refused to record her statement. Prior to recording her 164, Cr.P.C. Statement. Her statement under section 161, Cr.P.C. Had been recorded. Alleged abductee is present in Court and she clearly and categorically stated what she has stated in statement under section 161 Cr.P.C. Therefore, there appears to be prima facie material connecting the present applicant with the offence alleged in the F.I.R.
Consequently, this bail application is dismissed.