' SHAHID ANWAR BAJWA, J.---F.I.R. No,45 of 2010 of Police Station Padidan was recorded on 16-3- 2010 at 2300 hours for an incident alleged to have taken place on 20-1-2010. The complainant stated that he had his own medical store and on 20-1-2010 at 8-30 p.m. 12 armed persons came to the medical store, out of whom he identified 10 including the present applicant. They were alleged to have repeaters in their hands. They pointed weapons at the complainant, and his brother and a cousin. They robbed them of Rs,18,000 from the counter drawer and caught hold of brother Ziaullah and abducted him. Thereafter they fled away. After few days, complainant stated, he received a telephone message and the person talking on phone stated that his name was Ghulam Qadir Qadroo Mallah and he is alleged to have informed the complainant that his brother had been abducted for money and demanded ransom of Rs,3 crores; otherwise his brother would be killed.
The complainant stated that due to terror he did not lodge F.I.R. Police recovered the brother in an encounter with dacoits the abductee and thereafter F.I.R. Was lodged.
2. Learned counsel for the applicant submitted that there is delay of about two months in lodging of F.I.R. He submitted that there were general allegations and no specific role had been ascribed to the. Applicant. He submitted that co-accused Ghulam Nabi has been granted bail by the trial Court. He also submitted that co-accused Akbar has been acquitted by the trial Court vide order dated 2-7-2010. He relied upon Bahar Ali and 2 others v. The State and another (PLD 2008 Peshawar 28), Muhammad Shaheen alias Shan v. The State (2009 PCr.LJ 21) and Baloo alias Piyar Ali v. The State (2000 PCr.LJ 1508).
3. Mr. Zulfiquar Ali Jatoi learned D.P.-G. Vehemently opposed grant of the bail and submitted that the applicant is allegedly involved in a heinous crime of abduction for ransom. He also submitted that statement of alleged abductee has been recorded under section 164, Cr.P.C. And he has in all material respects supported the version stated in the F.I.R.
4. We have considered the submissions made by the learned counsel and have also gone through the record.
5. As far as contention of the learned counsel that there is two months delay in lodging of the F.I.R.
Is concerned, suffice it to observe that it is now well-settled law that in the cases of abduction or kidnapping for ransom invariably the families are held in terror and they always try as long as hope remains alive, to get the alleged abductee released and are therefore quite reluctant to go to police because they fear for life of the alleged abductee. Therefore delay is a natural phenomenon.
6. In a case for abduction every member of the gang which abducts a person is equally and vicariously liable and the question whether the one caught hold of a hand or did not would be immaterial in case of abduction. Therefore, in cases of abduction specific role is not prime consideration if the applicant is alleged to be member of a gang of abduction.
7. Learned counsel relied upon Bahar's Ali case. The case of the prosecution was that car of a taxi driver was hired in Mingora and on its way it was intercepted by five persons in levy uniforms, who arrested the passengers on a use pretext. The passengers were taken to a canyon where they were robbed of all their valuable articles. They were blind folded and were confined at a basement for 10 days from where they managed to flee away by availing an opportunity and on meeting police party on the way, they reported the incident. The applicant was nominated after seven weeks of the occurrence. However, no identification parade was arranged. Proof of ownership of the house where alleged abductees were kept was not even brought on record and there was no judicial or extrajudicial confession. It was in these circumstances that bail was allowed. The circumstances are clearly distinguishable because in the present case the applicant is named in the F.I.R. And there is clear statement under section 164, Cr.P.C. (to which we shall refer later) of the alleged abductee after his release. In Muhammad Shaheen's case (Supra) the case of the prosecution was that complainant's daughter went to school but did not return. Complainant stated that he was sure that the accused had abducted his daughter for obtaining ransom. A Division Bench of this Court observed that firstly there was no occular evidence of abduction; secondly the alleged abductee in her statement under section 164, Cr.P.C. Had stated that she had voluntarily gone to meet the applicant; and thirdly even time of injuries created a doubt. The case is again clearly distinguishable. In Baloo's case (Supra), the prosecution stated that on the fateful night complainant and other inmates woke up on noise of x door creaking and saw 12 persons with Kalashnikovs etc they robbed the complainant and abducted his nephew. Four co-accused were acquitted by the trial Court but the applicant had been an absconder. No opposition was stated by the state counsel and bail was allowed by a Division Bench of this Court. The case is again also distinguishable.
8. In the present case statement of the alleged abductee under section 164, Cr.P.C. Was recorded on 25-3-2010 and the alleged abductee stated that after abduction he was carried towards Bhirya side and thereafter he was blind folded and ultimately put in a vehicle and transferred to a room where they tied his hands and feet and the room was constantly watched by three to five persons.
He stated that he was told by the abductors that they had demanded ransom of Rs,3 crores. He stated that for 54 days he was kept at different places and on March 15th 2010 he was kept tied near a tube-well when police came, firing took place and then the police recovered him. In view of such clear statement by the alleged abductee and statement under section 161, Cr.P.C. Of the witnesses there appear to be sufficient material to connect the present applicant, prima facie, with the offence alleged against him.
9. Learned counsel argued that co-accused Akbar has been acquitted and co-accused Ghulam Nabi has been granted bail by the court below. Both the orders of acquittal as well as order granting bail are annexed with the application and both these indicate that question regarding statement under section 164, Cr.P.C. Was not pointed out to the Court and moreover both the judgments are based on no opposition by the prosecution. We are indeed surprised that even in presence of statement under section 164, Cr.P.C. The prosecutors chose firstly not to refer to that statement and secondly gave their no objection. Therefore, the principle of consistency cannot be attracted in the circumstances. Moreover consistency is always attracted when there are judgments of the Courts of equal stature. If a judgment or an order is of a Court of lower stature it cannot bind the court of higher stature and if judgment/order is by a Court of higher stature in the same hierarchy, if not only has persuasive value but is rather binding.
10. Result of the above discussion is that this criminal bail application is dismissed. Let a copy of this order be sent to the Prosecutor-General for his information.