Dr. Khurshid Ipbal, J.-
1. Petitioner (Murad Ali) seeks his release on bail in case FIR No.168/2023, dated 10.05.2023, under section 365B/109 PPC, registered at Police Station City Swari, District Buner.
2. Facts shortly are that on 16.03.2023 at 11:00 hours, complainant Ibrahim reported that his daughter Mst. Hafsa Bibi was getting religious education in Madrassa Asma-ul-Banaat situated at Sunigram, Buner. She used to leave her house for the Madrassa at 09:00 hours and return back home at 14:00 hours. As usual, on the day of the occurrence, she left her house for Madrassa, but did not return back. Her whereabouts were searched, but it surfaced that on the day of the occurrence, she had not attended the Madrassa. The report in respect of the missing of the daughter of complainant was reduced into writing in the shape of daily diary # 13, dated 16.03.2023.
On 10.05.2023, the complainant recorded his statement under section 164 Cr.P.C and charged accused Mushtaq Ahmad for the abduction of his daughter for compelling her for marriage. He also recorded his supplementary statement on 11.06.2023 and charged the present petitioner for abetment of the principal accused in the commission of the offence.
3. Arguments heard. Record perused.
4. Admittedly, the petitioner was not charged by the complainant on 16.03.2023 in the initial report he lodged to the effect that the victim Mst. Hafsa, his daughter, has got missing from his home. It was during inquiry under section 157, Cr.PC that the Inquiry Officer reached to the petitioner allegedly on the basis of Call Data Record (CDR). A certain cell phone number-03338686248--was provided by the complainant party which allegedly remained in the use in his house. The aforesaid cell phone was used for an inland and an international (seemingly Saudi Arabian) cell phone on the basis of co-accused Mushtaq Ahmad was traced. It was also unearthed that the present petitioner was instrumental in helping the victim to create an affair with the co-accused. In this respect, his interrogation report in the form of questions-answers is available on the record.
5. Till date, no evidence has been collected to prima facie establish any cell phone SIM in the name of the petitioner. The interrogation report reveals that the petitioner, on the request of the victim, arranged a cell phone SIM-03459695462-- in his name, but the inquiry report is silent whether it is in fact in his name or not. His interrogation report reveals that the victim was perhaps already in contact with someone in Saudi Arabia who managed to contact the petitioner. In view of the above circumstances coupled with the fact that the victim has still not been recovered, the case of the present petitioner becomes open to further probe whether he has induced or compelled her or she was already in a compromising relationship with the principal accused of her own choice. In Muhammad Younas and another v. Muhammad Hanif Khan and another (2014 YLR 1161 [Peshawar]), in which allegations of rape (section 376, PPC) were also added to abduction for the purpose of marriage, this court observed that the mode and manner of the occurrence reflected that the abductee has left the house of her father on her own accord. While dilating upon the language of section 365-B, PPC, the court observed: Section 365-B, P.P.C. signifies the carrying away of a woman by any means with an aim that she may be compelled to marriage or forced or made to illicit intercourse, against her will. The plain reading of the section indicates two main components and ingredients of the offence, firstly, there must be kidnapping or abduction of a woman, and secondly, the first act of abduction and kidnapping, must be with intent that she may be compelled to marriage or be forced or seduced to illicit intercourse. In the instant case all the above said elements are missing.
6. In view of the above, to say the least, it is yet to be seen either on her recovery or at the trial that the charge with the above essentials would be made out.
7. Indeed, there is no independent evidence on the record to prima facie connect the petitioner with the commission of the offences in hand. A major source used so far is that of the CDR There is now an established judicial view that CDR is not a conclusive proof of the guilt of an accused unless it is buttressed by concrete material on the record. Reliance is placed on Mst. Asiya v. The State and another (2023 SCMR 383), in which the Court observed: We have specifically asked the learned Law Officer that the learned counsel for the complainant to show us from record any material, which could prima facie connect the petitioner with the commission of the crime but except the Call Data Record (CDR), nothing could be relied upon. This Court in a number of cases has held that in absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused.
8. Guidance is also sought from a 2021 case of Mian Khalid Pervez v. the State through Specia Prosecutor ANF and another (2021 SCMR 522) (a criminal appeal), the Apex Court, has stated: Mere production of CDR Data without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth reliance.
Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence.
9. In the light of above facts and circumstances, there appears sufficient grounds for further inquiry into the guilt of the petitioner. Moreover, the investigation is complete and he is no more required for further interrogation. Thus, no useful purpose would be served, if he is kept in jail. As held in Shabir Ahmed v. The State (2023 YLRN 35 Karachi), bail cannot be withheld as punishment and the law cannot be stretched upon in favour of the prosecution, particularly at bail stage. Moreover, the wrong caused by a mistaken relief of bail can be repaired by awarding the accused appropriate punishment in case he is found guilty at the trial. However, no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reference may be made to Asim Jahangir v. State (2020 YLR 891 Islamabad) and Naqeeb Ullah v. State (2023 YLR 162 Quetta).
10. Resultantly, the instant petition is accepted. The petitioner shall be released on bail subject to furnishing bail bonds to the tune of Rs.1,00,000/- (rupees one hundred thousand) with two local and reliable sureties to the satisfaction of Illaqa Judicial Magistrate / MOD, who must ensure that the sureties are local, reliable and men of means. This order is based on tentative assessment of the record. It shall have no bearing on the merits of the trial at the trial.
11. The above are the reasons for my short order of even date.