ALI HUSSAIN alias ALI HASSAN Applicant vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Ali Hussain, who was charged under Section 365-B of the Pakistan Penal Code 1860 for the alleged kidnapping of a minor girl. The core legal questions were whether the delay in lodging the F.I.R. entitled the applicant to bail and whether the provisions of Section 365-B were applicable given the victim's young age. The court held that the applicant was specifically named in the F.I.R. and that the material on record sufficiently connected him to the commission of the offence. Regarding the delay in lodging the F.I.R., the court clarified that while delay can be a ground for bail, it is not a universal rule, particularly in kidnapping cases where parents prioritize recovering the child over immediate legal action. Furthermore, the court rejected the argument that the victim's age precluded the application of Section 365-B. Consequently, the bail application was dismissed. The key principle established is that delay in reporting a kidnapping is not necessarily fatal to the prosecution's case, as parental focus on recovery is a reasonable explanation for such delay.
- Does a delay in lodging an F.I.R. in a kidnapping case automatically entitle the accused to bail?
- Can the provisions of Section 365-B of the Pakistan Penal Code 1860 be applied to the abduction of a minor?
- Is the specific naming of an accused in an F.I.R. sufficient to connect them to the commission of an offence during bail proceedings?
- Section 497, Code of Criminal Procedure 1898
- Section 365-B, Pakistan Penal Code 1860
ORDER
' SALMAN TALIBUDDIN, J. This is an application under section 497, Cr.P.C, praying that the applicant Ali Hussain son of Muhammad Sohrab Panhwar, be admitted to bail in Crime No,30 of 2009, registered at Police Station Airport, Nawabshah, under section 365-B P.P.C. Arguments were heard in this matter on 15-6-2009, on which date orders were reserved.
2. Brief facts of the prosecution case are that on 7-3-2009 the complainant Illahi Bux Bhatti along with his daughter Mooran aged about 10-12 years and his relatives Khamiso Bhatti and Muhammad Ramzan Buriro were waiting for transport at Ghafoor Petrol Pump, Nawabshah, to taken them to Sakrand, when at about 2-00 p.m. a car which was being driven by Ghulam Rasool Buriro, came and stopped near them. The applicant, Muhammad Hussain, who was sitting on the front passenger seat, asked the complainant and his companions as to where they were going.
Upon being informed that they were going to visit their relatives at Sakrand the applicant offered to give them a lift and the complainant along with his daughter, Khamiso and Muhammad Ramzan boarded in the car. The car was driven slowly by Ghulam Rasool and the complainant and his companions were informed that they will have to go to Sakrand through Khaddar road. All this time, the applicant and Ghulam Rasool were talking on the mobile phone with Ali Gul Unar and Dur Muhammad Unar who were asked to urgently come to Khaddar Road. At about 2-45 p.m. The car reached at Mugheri Mour Town, when all of a sudden a car in which Ali Gul Unar, Dur Muhammad Unar and other unknown persons were sitting, came and stopped the car driven by Ghulam Rasool.
At this time, applicant Ali Hussain, Dur Muhammad Unar and Ali Gul Unar took out pistols and forcibly took the complainant's daughter away leaving the complainant and his other companies behind. The F.I.R. Was lodged on 10-3-2009 at 1800 hours. According to the complainant, between the date of the occurrence and lodging of the F.I.R, he was attempting to recover his daughter from the accused persons who kept on giving him false hopes for her return.
3. Learned counsel for the applicant has submitted that the applicant is innocent and has been falsely implicated by the complainant at the instance of Muhammad Raman, with whom the applicant has a dispute over money matters. Learned counsel has also referred to the delay in lodging the F.I.R. Without any plausible explanation, which according to him goes to show that the same was lodged after deliberation and consultation. Learned counsel has further submitted that no specific role or part in kidnapping the child has been attributed to the applicant, and as such his involvement in the alleged crime requires further inquiry. Learned counsel has also submitted that in view of the age of the child the provisions of section 365-B, P.P.C., are not attracted to the case. In support of this submission learned counsel submitted that given her age, it is inconceivable that she would be abducted for the purpose of compelling her to marry someone against her will.
4. In response, learned counsel for the State opposed the grant of bail on the ground that a specific role in kidnapping a young girl of 10-12 years, has been assigned to the applicant and also that the name of the applicant has been specifically mentioned in the F.I.R.
5. I have considered the submissions made by learned counsel for the parties and have also gone through the material available on record.
6. So far as the applicant is concerned, he has been specifically named in the F.I.R. And along with the co-accused implicated in the abduction of a young girl who has yet to be recovered.
7. So far as the learned counsel's submission that the provisions of section 365-B, P.P.C. Cannot be applied to this case in view of the fact that the abductee is only 10-11 years of age and, therefore, could not have been abducted for the purpose of compelling her to marry someone against her will, is concerned, it is relevant that this is not only ground on which section 365-B, P.P.C. May be attracted to a particular case.
8. While, I am conscious of the fact that delay in lodging the F.I.R. Is a ground for grant of bail, however, this is not a rule of universal application and is not always fatal to the prosecution's case.
Where a child has been kidnapped it is natural for parents to concentrate their efforts on locating the child rather than lodging the B F.I.R. Promptly and no adverse inference is to be drawn against the prosecution in such cases on this ground alone. On a tentative appreciation of the material on record I am satisfied that it is sufficient to connect the applicant with the commission of the alleged offence and, therefore, dismiss this Criminal Bail Application No,S-246 of 2009.