THE STATE vs MUHAMMAD RIAZ

ORDER

' MUHAMMAD ATHAR SAEED, J.---This Criminal Bail Application has been filed against order of the IIIrd Additional Sessions Judge, Malir Karachi dated 10-8-2009 in Bail Application No,224 of 2009 by which the above bail application was rejected.

2. Brief facts of the case are the F.I.R. On the basis of statement under section 154, Cr.P.C. Was registered with area Magistrate P.S. Sohrab Goath Karachi by complainant known as Mst. Gulshan Kulsoom who had alleged that the applicant had with few other persons enticed the complainant to accompany them to a marriage of her relative at Sukkur and then after the marriage when the complainant wanted to come back they forced her to stay and did not allow her to leave the place and then they brought her to Karachi and when she wanted to leave they started threatening her and then an other person Muhammad Afzal, who was initially challaned but later on his name was removed, informed the complainant that the applicant with his companions wanted to sell her but till then the sale transaction was not finalized therefore they were keeping her with them. He also informed her that they had sold his wife Sara at Sukkur and therefore, the complainant prayed for action against Bashira, Muhammad Riaz the applicant and their companions.

3. On the basis of the above F.I.R. Charge sheet was framed dated 17-3-2009 and statement under section 164 of Mst. Saira Perveen wife of Afzal was recorded wherein she has stated that she had been tempted by the applicant and co-accused Goshi to come Karachi with them so that she can work in a beauty parlour. However, after she fell sick and became unconscious she found her in company of strangers who told her that they had purchased her for Rs,80,000 and they will only release her if they receive Rs,200,000. She further stated that they kept her intoxicated through injections and other medicine. She stated that her husband Muhammad Afzal and another accused Liaqat Ali were not guilty.

4. On the basis of the F.I.R. And the above statement the applicant was arrested. He filed a bail application before the Additional Session Judge Malir which was dismissed vide the impugned order. Hence this bail application.

5. I have heard Mr. Syed Nadeemul Haq Advocate for the applicant and Mr Khadim Hussain DPG Sindh.

6. The main contention of the learned counsel for the applicant is that although the name of the applicant has been mentioned as one of the persons who enticed the complainant on the pretext of marriage but no specific role has been assigned to him. He further submitted that even in the F.I.R. Although the complainant expressed her apprehension that she was enticed away from her house with the intention of selling her but the prosecution has not been able to bring even one witness on record who could testify that negotiations were being held with parties for the sale of the complainant. He further submitted that in the statement under section 164 Cr .P .C. Of Mst. Saira w/o Afzal although his name has been mentioned as person who brought her from Faisalabad but, except the general allegations that she was sold, no role has been assigned to the applicant in her sale to the strangers from whom she escaped and from the fact that she was intoxicated her evidence as to who sold her could not be relied upon. He therefore, prayed that the applicant may be enlarged on bail.

7. The Deputy Prosecutor General strongly opposed the bail application and submitted that the charges against the applicant are under sections 498 and 371-A, P.P.C. And submitted that the case falls under prohibitory clause as under section 371-A, P.P.C. The applicant can be sentenced for 25 years. He read out the provisions of section 371-A, P.P.C. To fortify his submissions. The learned counsel also relied on the statement of Saira in which the role of enticing her away from Faisalabad has been assigned to the applicant. He therefore prayed that the bail may be rejected.

8. I have examined the bail application in the light of the arguments of the learned counsel and have perused the records of the case. Before dealing any further with the application it will be pertinent to reproduce section 371-A, P.P.C.:-- ' 371-A. Selling person for purpose of prostitution etc.- whoever sells, lets to hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty five years and shall also be liable to fine.

' Explanation.--(a) when a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

9. From a perusal of the above section it is clear that this provision only applies to persons who sell any person with the intent that such person shall be used for the purpose of prostitution or illicit intercourse. Explanation-a makes it clear that if a person has been sold to a prostitute then it will beclear that the person who sold such person to prostitute intended that she shall be used for the purpose of prostitution. From a perusal of the F.I.R. The statement of Saira and the other documents on record no allegation has been made that the complainant was intended to be sold to any prostitute or to any person who intended to use her for the purposes of prostitution or intercourse and from the statement of Saira it does not transpire that she was sold to a prostitute or to persons who intended to use her as a prostitute. In fact what emerges is that the person who purchased her intended to further sell her for an enhanced price. I am, therefore, of the opinion that further enquiry is needed to connect the applicant with the charges and allegations under section 371-A and so far tentatively the prosecution has not made out a case which can be assumed to fall under section 371-A, P.P.C. So far section 498 is concerned the maximum sentence for inducing away married woman with intention of illicit intercourse is two years which does not fall under prohibitory clause of section 497, P.P.C. I am therefore of the considered opinion that the applicant is entitled to bail.

10. The above are the reasons for the short order passed in Court on 30-9-2009 after hearing the learned counsel by which I had admitted the applicant to bail on furnishing solvent surety in the sum of Rs,2,50,000 only and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

11. It may be pointed out that above observations are tentative in nature and may not be considered by the learned trial Court while finally disposing of the matter.

12. The applicant is directed to cooperate in trial Court and attend all the proceedings before the trial Court failing which this concession of bail may be dismissed.

13. This bail application is disposed of in the above manner.