SHABAN alias UMED ALI vs THE STATE
The applicant, Shaban alias Umed Ali, sought post-arrest bail in Crime No. 43 of 2007 registered at Police Station Dadu under Section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the applicant was entitled to bail given the delayed FIR, the conduct of the complainant, the delay in recording Section 161 statements, and the fact that the primary role of abduction was attributed to a co-accused who had since been murdered. The Sindh High Court held that the unexplained delay in lodging the FIR, the unnatural conduct of the complainant in seeking tribal intervention instead of reporting the crime promptly, and the absence of any active role attributed to the applicant beyond accompanying the main accused rendered the case one of further inquiry. Consequently, the court granted post-arrest bail to the applicant subject to furnishing requisite surety bonds. The key principle laid down is that unexplained delay in lodging the FIR, coupled with the lack of an active overt act attributed to a co-accused, brings the case within the scope of further inquiry under Section 497(2), Cr.P.C., warranting the grant of bail.
- Does an unexplained delay in lodging the FIR justify the grant of post-arrest bail?
- Whether absence of an active role attributed to an accused accompanying the main perpetrator makes out a case for further inquiry?
- Can bail be granted when the primary accused assigned a specific role has been murdered?
- Section 11/16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
ORDER
' MRS. YASMIN ABBASEY, J.--- Applicant Shaban alias Umed Ali, involved in Crime No,43 of 20007 registered at Police Station Dadu, under section 11/16, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, has moved this bail application.
2. Facts of the case are that on 15-2-2007 F.I.R. Of this incident was registered by complainant Dhani Bux that on 12-2-2007 at night time applicant along with Mst. Rasoolan, Mst. Shahidan, Ghulam Hussain Shah, Muneer Shah and Akhtar Shah came at his house duly armed. Accused Akhtar Shah dragged his daughter-in-law Mst. Yasmeen from his house and had abducted her in a Datsun car. According to complainant he at the first instance had reported the matter to Nek Mards, but having no response from them, lodged the report on 15-2-2007.
3. Learned counsel for the applicant argued that very delay in lodging the F.I.R. Shows the implication of the applicant and happening of incident as false and manipulated one. He further pointed out that incident is said to had taken place on 12-2-2007, whereas statements under section 161, Cr.P.C. Of the witnesses were recorded on 22-2-2007, which itself is sufficient proof of mala fide investigation. Main accused Akhtar Shah is reported to have been murdered.
4. Learned State counsel has conceded to the grant of bail.
5. Admittedly, the F.I.R. Is delayed by three days with no plausible explanation. The conduct of the complainant as shown is also a strange one. In spite of occurrence of incident in his presence where life and modesty of a woman might involve no attempt was made by him to save her.
Rathermore no step was taken by him in time to lodge F.I.R. He kept himself on the mercy of others with no reasonable excuse. The very conduct of this complainant doubts to the happening of incident in the manner as alleged. Even otherwise specific role has been assigned only against Akhtar Shah who is said to have been murdered. This applicant along with other accomplices though was in the company of Akhtar Shah, but neither he played any active role except entering in the house of the complainant, nor is alleged to cause any injury to the complainant or to the abductee. In view of facts discussed it appears to be a case of further inquiry. The applicant is allowed to be enlarged on bail subject to his furnishing surety in the sum of Rs,5,00,000 (Rupees five lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.
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