' MUHAMMAD IQBAL KALHORO, J.---The applicants namely Shah Muhammad alias Baboo and Sabhago have filed the instant bail application in Sessions Case No,67 of 2010 bearing Crime No,410 of 2011, P.S. Tando Adam under sections 365-B and 34, P.P.C.
2. The facts in brief leading to the prosecution case are that complainant namely A ijaz lodged an F.I.R. On 1-2-2011 against present applicant/accused and co-accused Sikander levelling allegations against them that on the day of incident viz. 25-8-2011, they duly armed with weapons abducted his niece Mst. Hina aged about 19 years from his house located in village Peero Fakir Shoro Taluka Tando Adam District Sanghar. It is alleged that complainant inititially complained against the accused to the Headmen of the area, who assured him restoration of abductee to him but later on resiled. As a result of which, complainant lodged the present F.I.R.
3. Learned counsel appearing on behalf of the applicants/accused while arguing has submitted that prosecution has not cited any independent person to have witnessed the occurrence as all the witnesses in the case are related inter se albeit the incident is alleged to have happened in the village which is a thickly populated area; per learned counsel there is delay of more than one month in lodging the F.I.R. Which has not been explained. According to him, the abductee had contracted marriage on 26-8-2011 with accused Sabhago, such publication affirming the marriage of the abductee with accused was published in the newspaper daily "Kawish", which shows that in fact the abductee had left the house of complainant on her own accord and allegations against the applicants are false and frivolous. Per learned counsel, the whole episode of the abduction appears to be doubtful as the abductee is alleged to have returned home on her own accord, which fact does not correspond with the allegations in the F.I.R. He has also pointed out that there are certain contractions in the statements of abductee recorded under section 164, Cr.P.C. And 161, Cr.P.C. Which makes the case against the applicants as one of further inquiry. The learned counsel in support of his arguments has relied upon the cases of MAZHAR HUSSAIN v. STATE (2012 SCM R 887), KASHIF RAZA v. STATE (2012 YLR 633) and GHULAM HYDER v. STATE (2011 YLR 2446).
4. On the other hand, learned DDPP appearing on behalf of the State has vehemently opposed the grant of bail to the applicants/accused by arguing that specific role of abduction and committing rape upon the abductee has been levelled against the applicants. According to him, the applicants/accused had earlier filed bail Application No,973 of 2012 before this Court which was dismissed on merits vide order dated 7-1-2013, and the present bail application has not been filed on any fresh ground which therefore, is not maintainable. Per learned DDPP, the trial Court has examined all the witnesses shown in Column No,6 of the challan sheet except Investigating Officer of the case, whose evidence can be recorded within short span of time, whereafter the case would be entirely concluded, therefore, at this stage, the appreciation of the contention advanced by the defence counsel amounts to prejudging the case of the prosecution, which is not permissible under the law. He has lastly prayed for dismissal of the instant bail application of the applicants/accused.
5. I have heard the learned counsel for the parties and have perused the record with their assistance.
6. Perusal of F.I.R. Shows that the incident occurred at the house of complainant which was witnessed by the relatives of complainant available in the house, their presence at the spot cannot be looked into deeply at bail stage as it amounts to deep appreciation which is not permissible under the law. Both the accused have been specifically nominated to have committed the offence of abduction punishable with imprisonment for life which puts their case within embargo provided under 497(1), Cr.P.C., generally in such cases discretionary relief of granting bail to the accused can be favourably considered only under strong exceptional circumstances nudging their case in the purview of further enquiry. In the present case, I am afraid, the accused have not been able to point out to any such ground available in their favour. In absence of any strong motive to falsely implicate the accused, which is discernible at tentative assessment of material available on record, the accused cannot claim bail as a matter of right.
7. The record further shows that the abductee on her arrival back from the confinement of present applicants/accused was produced before the Magistrate, who recorded her statement under section 164, Cr.P.C. She in her statement has fully implicated the present applicants /accused, subsequently she reiterated the same facts in her evidence before the trial Court. A tentative glance over her evidence, since it has been produced by the applicants, shows that she has, prima facie, supported the prosecution case. The argument of learned counsel that there are certain contradictions in the statement of abductee under section 164, Cr.P.C. And 161, Cr.P.C., will not help the case of present applicants/ accused at bail stage, moreso when her evidence has been recorded by the trial court.
8. Regarding delay in lodging the F.I.R., suffice it to say that in this part of the world the cases, involving family honour are reluctantly reported by the people only after their efforts for private settlement bear no fruit. In the present matter, however, delay appears to have been reasonably explained by the complainant. Even otherwise delay per se is never considered by superior courts a circumstance to grant bail to the accused involved in a case carrying capital punishment.
9. Admittedly the applicants had earlier filed bail Application No,S-973 of 2012 before this court which was dismissed on merits vide order dated 7-1-2013. It is well-settled proposition of law that a subsequent bail application can be filed on some fresh grounds which were not in existence at the time of moving first bail application.
10. The Honourable Supreme Court in a case of Nazir Ahmed v. The State (PLD 2014 SC 241) in para No,25 has laid down guidelines for the court for deciding the subsequent bail application filed by the accused as under:-- "Before parting with this judgment we would like to, for the benefit of all concerned, restate the principles of propriety and practice enunciated by this court thus far regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in criminal cases and would expect al the courts below to scrupulously and meticulously adhere to and follow the same. The said principles are as follows:- ' In cases of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief can be filed and entertained only if it is based upon a fresh ground, i.e, ground which was not available or in existence at the time of decision of the earlier application.
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11. The argument of defence Counsel that abductee has performed nikah with her free will with the accused namely Sabhago, such factum . Of nikah published in newspaper would make the case against him falling in the definition of further enquiry, in my humble view, lacks force in as much as examination of free will allegedly exercised by the abductee for marriage in juxtaposition of her evidence recorded in the trial require deep probe which the trial court is competent to undertake at this stage when all the P. Ws. Have been examined excepting investigating officer of the case.
The courts, in such situation shall stay their hands to either grant or refuse the bail when the trial has considerably progressed.
12. The hon'ble Supreme Court has held in case 2011 SCM R 1332, in para No,3 as under:-- " ...The courts should not grant or cancel bail when the trial is in progress and proper course for the courts in such a situation would be to direct the learned trial Court to conclude the trial of the case within a specified period."
13. I have also gone through the case law relied upon by defence counsel which is not applicable in the present case being based on different facts and grounds.
14. In view of above discussion, I am of the view that the applicants have not been able to make out a case of further inquiry. Consequently, their bail application is dismissed. However, I find it appropriate, since all the witnesses have been examined except I.O. Of the case, to direct the trial Court to expedite the matter and conclude the same within short possible period preferably within two months from receipt of this order.
15. Needless to say that the observations made hereinabove are tentative in nature and would not prejudice the case of either side at the trial.