1. TUFAIL H. EBRAHIM, J.---The applicants/accused were admitted to interim pre-arrest bail by this Court vide order dated 16-7-2010.
2. The brief facts of the case are that on 17-6-2010 F.I.R. No.90 of 2010 has been lodged by complainant Athar Javed son of Dur Muhammad Siyal at Halani Police Station District. Naushahro Feroze for the offences punishable under section 365-B, Rights of Women Act, 2006/148/149/504/506, P.P.C., in which he has stated that on 3-6-2010 at 11-00 a.m. Two women Mst.
3. Hawwa wife of Shamman Mallah who is peon in a private girls high school and Mst. Shana wife of Abdul Ghaffar Gonga Mallah came to his house and asked his sister namely Attiya Parveen daughter of Dur Muhammad Siyal aged about 28 years and the teacher in girls high School that Headmistress of the school called her to sign some documents, hence his sister Attiya Parveen went outside with them, soon after the complainant heard the cries of his sister from outside and when he came outside the house, saw a silver colour car parked in the street in which Ikhtiar Hussain Manganhar was sitting on the driver seat and Mst. Shana, was with her three sons Pir Bux Mallah, armed with repeater, Naveed Mallah armed with T.T. Pistol and Waheed Mallah issued threats to the complainant of dire consequences and pointed their weapons towards the complainant to keep silent. In the meanwhile Zulfiqar Ali, Manzoor Hussain were passing in the street have seen the incident. The accused persons dragged his sister Attiya Parveen in the said car and boarded her in the said car and escaped away towards north side. The complainant narrated all the facts to his maternal uncle Wali Muhammad Siyal, they proceeded to the Vadera/Neck Mard namely Qazi Altaf Hussain and disclosed him all the facts who replied that when the accused persons would be apprehended then the girl will be returned, thereafter they came back. On that day one Zamir Hussain Shaikh and a teacher of Girls High School came to the house of complainant along with his maternal uncle Wali Muhammad, said Zamir told the complainant that his friend Pir Bux Mallah directed him on telephone to tell the family of Attiya Parveen not to file any case. The maternal uncle of complainant inquired about the whereabouts of Pir Bux, upon which he replied that they are with one Niaz Hussain Mallah who is working at Nawabshah Airport. Due to above threats the complainant remained silent. Later on they again went to Vadera/Nek Mard Altaf Hussain who advised them to initiate legal action, therefore the complainant came to report against Pir Bux, Naveed Mallah, Waheed Mallah, Mst. Hawwa Bibi, Mst.
4. Shana Bibi and driver Ikhtiar Hussain Manganhar, who have kidnapped his sister Attiya Parveen on the pretext to sign some documents and to perform Nikah by force and also given threats of dire consequences.
5. The learned counsel for the applicants/accused has contended that the applicants/accused have been falsely implicated in the F.I.R. For mala fide and ulterior motives to pressurize the applicants/accused to dissolve the marriage. Per learned counsel the alleged abductee is a mature lady and school teacher by profession who had fallen in love with applicant/accused No.1 and through free will and under her own volition had married to applicant/accused No.1 on 3-6- 2010 against the wishes of the family of the complainant, as they wanted to solemnize the marriage with some other person for monetary consideration. Per learned counsel that there has been delay of fourteen days in lodging F.I.R. Which has remained unexplained and the alleged abductee had firstly appeared before the Kazi for the Nikah and thereafter before the Magistrate for recording her Free Will Affidavit and if there was any truth in the contention of the complainant in the F.I.R., then the applicants/accused would not had permitted the abductee to file the constitutional petition on 21-6-2010 and to appear before two officials of the High Court for verification purposes and then to record her statement before the Judges of the Hon'ble High Court on 24-6-2010. Per learned counsel there was great apprehension and fear that the applicants/accused would be arrested, maltreated and humilated as Police under the influence of family of the complainant had encircled the Sessions Courts at Naushero Feroz and had even raided the houses of the applicants/accused and even arrested applicants/accused Nos.2 and 3.
6. Per learned counsel the subsequent statement of the alleged abductee made in Court 5-7-2010 where she rescinded from her earlier statement, was under the influence and coercion of the family members of the abductee and even her statement which was recorded under the orders of this Court were not made under her own free will and volition and was made in the presence and dictates of her family members. Per learned Counsel, the Advocate-General Sindh was not present in the office when such statement was recorded and the said statement was a verbatim of the F.I.R.
7. The learned counsel in support of his contentions has relied on the cases of (1) Muhammad Nawab Bashir v. The State, reported in 2009 PCr.LJ 736 (2) case of Naseer Ahmed v. The State, reported in 2003 M LD 1407. Learned counsel also relied upon an unreported order passed by this Court in Criminal Bail Application No.723 of 2010 in the case of Ehsanullah Khan v. The State.
8. The learned A.P.-G. Has vehemently opposed the confirmation of interim pre-arrest bail to the applicants/accused on the grounds that the applicants/accused are nominated in the F.I.R. And specific roles have been attributed to them. Per learned A.P.-G. The subsequent statement of the abductee was recorded in the office of the Advocate-General Siiith and is in accordance with law and there were no mala fide nor there are any reasonable grounds leading to a belief that the applicants/accused were not guilty of the offence alleged against them as the incident had occurred in broad daylight and there were witnesses to the said offence. He in support of his contention has relied upon the case law reported in PLD 2009 SC 427 (Rana Muhammad Arshad v.
9. Muhammad Rafique and another).
10. The learned counsel for the complainant has fully supported the contentions of the learned A.P.-G.
11. The learned counsel has submitted that pre-arrest bail is an extraordinary relief and there is no mala fide or malice on the part of the complainant and the police and earlier the brothers of the applicant No.1 were released on the basis of the first statement of the abductee made in Court, which was under threat and coercion and the alleged abductee has recorded her statement in the office of the A.-G. Sindh which is under her own free will and volition. The learned counsel in support of his contentions has relied on the following case laws:- 2009 PCr.LJ 409, 2008 PCr.LJ 1451, 2008 YLR 1544, 2007 SCM R 1607 and PLD 2007 SC 427.
12. With the able assistance of learned counsel of the parties and the learned A.A.-G., I have pursued the record. The applicants/accused are nominated in the F.I.R. With more or less specific roles have been assigned to them in the commission of the offence, but prima facie I am A of the view that delay of fourteen days in the lodging of the F.I.R. Of such heinous crime is not justifiable and element of consultation and deliberation cannot be ruled out, more particularly when so much information was available to the complainant. Nothing has come on record as to the forced physical confinement or any abuse to the alleged abductee who was allegedly kept in confinement for one month and two days. The statement recorded by the police of the alleged abductee who is a mature and well educated lady cannot be said to be completely free from doubt as given by her under her own free will and volition. The confinement by the applicants/accused, at the time of her appearance silence of alleged abductee as to .The alleged abduction and forceful before Qazi, Magistrate, officers of the Sindh High Court at two occasions and before the Division Bench of this Court creates doubt as to the guilt of the applicants/accused and would call for further inquiry within the meaning of section 497(2), Cr.P.C. Question of malice and mala fide on the part of the complainant and the police cannot be ruled out as it was her sister who was allegedly abducted or had eloped with applicant/accused No.1 and who had also made free will affidavit and filed a constitutional petition in which adverse remarks were made against the family of the complainant and against police officials and fear and apprehension of karo kari could not he ruled out; besides the raiding of the houses of the applicants/accused by the police and arrest of applicants/accused Nos. 2 and 3. According to me there is prima facie, reasonable grounds leading to a belief that the applicants/accused are not guilty of the offence, otherwise they would not have filed constitutional petition in the High Court of Sindh.
13. For the reasons and discussion as aforesaid and taking into consideration the various case laws relied by the counsel of the parties, I have come to the preliminary conclusion that the case against the applicants/accused is a fit case for further inquiry within the meaning of section 497(2), Cr.P.C. Which entitles them for the grant of bail. The interim bail earlier granted to the applicants/accused on 16-7-2010 is hereby confirmed on the same terms and conditions except the surety amount of applicants/accused Nos. 1, 2 and 3 shall be increased to Rs.200,000 each from Rs.100,000. The said applicants/accused shall furnish additional surety to the satisfaction of the Nazir of this Court within seven days from the date hereof. The above discussion and findings are only tentative in nature and should not influence or prejudice the trial court in arriving at a just and fair decision, based on the evidence to be adduced at trial.