' MUHAMMAD ALI MAZHAR J.---The applicant has applied post-arrest bail in Crime No, 63 of 2011, lodged at Police Station, Airport, under Sections 452, 365-B, 34, P.P.C.
2. The bail application was moved in the trial court but it was dismissed vide order dated 31-1-2012.
3. Succinctly, the facts of the prosecution case are that on 30-9-2011, complainant Muhammad Rafique lodged F.I.R. That his marriage was solemnized with Mst. Farzana. Allah Dino Bugti is his relative. On 27-6-2011, complainant along with his brother Muhammad Yasin, maternal uncle Ghulam Muhammad and wife Mst. Farzana and other family members was in his house when at about 3-00 p.m, accused Allah Dino alias Hafiz Muhammad Ali Shaikh and two unidentified culprits trespassed into his house and took out pistols from the folds of their shalwars and pointed towards complainant party. Due to fear of weapons, complainant party remained silent. The accused Allah Dino forcibly dragged Mst. Farzana and went outside. Complainant party also came out and saw that accused persons took away Mst. Farzana in a white colour Coure car towards Afzal Khan Khoso road. The complainant informed Nekmards and also contacted accused persons, who kept the complainant party on hopes that they will return Mst. Farzana, but finally refused. It is further alleged in the F.I.R. That the accused have abducted Mst. Farzana with intention to commit Zina.
She was pregnant by 3/4 months.
4. The learned counsel for the applicant argued that there is no independent eye-witness of the alleged incident though the place of incident was situated in thickly populated area surrounded by various houses and shops. He further argued that no incriminating crime weapon was recovered from the present applicant which may suffice to connect him with the crime in question. He further argued that no specific role attributed to the applicant except his presence at the place of incident which is not sufficient to connect him with the crime. He further argued that there is delay of at least three months in lodging the F.I.R. The learned counsel submitted copy of further statement of complainant recorded on 4-10-2011, in which he stated that his wife is in custody of Riaz Hussain.
The learned counser made much emphasis that the complainant in his further statement himself stated that his wife has been abducted or kidnapped by co-accused Riaz Hussain, therefore, the case of the applicant requires further inquiry and he is entitled to be released on bail.
5. The learned State Counsel argued that name of the applicant is clearly mentioned in the F.I.R.
With specific role. He was present along , with co-accused persons at the place of incident with pistol and on the force of weapons co-accused Allah Dino dragged the wife of complainant. He further argued that all the accused persons are equally responsible and committed the offence with their common intention and since applicant is involved in a heinous crime of abduction, therefore, at this stage there is no reasonable ground to believe that the applicant is not involved in the crime in question.
6. Heard the arguments. It is clear from F.I.R. That the applicant has been assigned specific role. He was present at the place of incident and also pointed out weapon on the complainant and other persons. The applicant and Allah Dino both were armed with weapons and Allah Dino forcibly dragged Mst. Farzana and all accused persons fled away in a car. It is clear from the role assigned to the applicant that not only he was present at the place of incident duly armed with weapon, but he also facilitated co-accused Allah Dino which shows that all accused persons with their common intention trespassed into the house of complainant with sole intention to kidnap wife of the complainant. The learned counsel for the applicant submitted a copy of further statement in which also the complainant narrated the same facts and he again named the A present applicant and stated that at present his wife is under the custody of co-accused Riaz Hussain. So far as the delay in lodging of F.I.R. Is concerned, complainant clearly stated in the F.I.R. That he was kept on false hopes that accused persons will release his wife and on their refusal, complainant lodged the F.I.R., in which he has explained the cause of delay satisfactorily. Challan has already been submitted in which also co-accused Riaz Hussain has been shown absconder while Allah Dino and the present applicant are shown in custody. The version of the complainant is fully supported by .Two eye- witnesses, namely, Muhammad Yaseen and Ghulam Muhammad in their statements recorded under section 161, Cr.P.C. The alleged abductee has not been recovered so far and it is also a fact that the applicant is involved in a heinous crime which is punishable for life imprisonment, besides an offence of house trespass which is also punishable for a term which may extend to seven years.
The learned counsel relied upon case-law reported in 2003 YLR 2549 (Mst. Bakhtawar v. State), in which bail was allowed on the ground that police raided the place and found accused lady and co-accused inside "Dhari" but there was no evidence that they were seen indulging. In an act of Zina. Report of Chemical Examiner was also found in negative, therefore, bail was granted to Mst.
Bakhtawar. Facts of the reported case are distinguishable and not relevant to the case in hand. The learned counsel also relied upon another case-law reported in 2008 PCr.LJ 1082 (Wazir All v. State).
In this cage, bail was allowed in a crime lodged under Section 365-B, P.P.C. For the reasons that the story of abduction prima facie seems to be concocted and fabricated. Leaving her house abruptly to attend the engagement ceremony by the abductee leaving behind her seven children, seems to be implausible and unnatural. Abductee did not resist and make any hue and cry during the long journey, though she was being carried in a public transport. Again the facts, of the above case are distinguishable. In the present case, learned counsel did not argue that case is doubtful, but he himself produced copy of further statement of the complainant in which it was stated by him that his wife is in the custody of co-accused Riaz Hussain and in the case in hand, no abduction took place in a public transport.
7. The honourable Supreme Court held that section 34, P.P.C. Embodied common sense principle that if two or more persons intentionally did a thing jointly, it was just the same as if each of them had done it individually. Common intention implies acting in concert in pursuance of pre-arranged plan which was to be proved either from conduct or from circumstances or from incriminating facts. Common intention was an intention to commit crime actually committed and each accused person could be convicted of that crime, only if he had participated in that common intention. In another judgment, honourable Supreme Court held that common intention to commit crime can be gathered from the circumstances which may prevail at the spur of moment in reaction to happening of some incident. Common intention can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention. Reference can be made to PLD 2007 SC 93 (Shoukat All v. State) and PLD 2007 SC 83 (Ali Imran v. State).
8. It is discernable from the record that all the accused persons with their common intention committed the offence and there is no reasonable grounds exist to believe that the present applicant is not involved in the crime in question.
9. For the foregoing reasons, this bail application is dismissed. Since the challan has been submitted, the trial court is directed to record the evidence of complainant and two eye-witnesses within a period of one month, thereafter applicant may move fresh bail application in the trial court. The above findings are tentative in nature and shall not prejudice the case of either party.