ABID ALI vs THE STATE
This matter arises from a criminal bail application filed by the applicant seeking post-arrest bail in F.I.R No. 221 of 2010 registered under sections 365, 344, and 376 of the Pakistan Penal Code 1860 at Police Station Kamber. The core legal question was whether the applicant was entitled to post-arrest bail in view of the delayed reporting, inconsistent conduct of the complainant's family members, and awaiting medical reports. The Sindh High Court held that discrepancies in the F.I.R, the unnatural silence and inaction of the complainant's brothers and husband upon witnessing the alleged kidnapping, and the absence of final medical evidence created reasonable doubt regarding the applicant's involvement. The court laid down the principle that unexplained inaction of eyewitnesses at the time of the incident and shaky narration in the F.I.R constitute reasonable grounds for further inquiry, warranting the grant of post-arrest bail to an accused.
- Whether unnatural silence and inaction of close relatives upon witnessing an alleged kidnapping creates reasonable doubt for granting bail?
- Does the absence of a final medical certificate at the bail stage support the grant of post-arrest bail?
- Whether discrepancies and shaky contents in an F.I.R can be construed in favor of an accused seeking bail?
- Section 365, Pakistan Penal Code 1860
- Section 344, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
1. ORDER ORDER SALMAN HAMID, J.---A mother of four (the complainant) lodged F.I.R No.221 of 2010 on 21-7-2010 at Police Station Kamber under sections 365, 344, 376 P.P.C., with allegations therein that she was kidnapped by the present applicant and two other persons, named in the F.I.R on 8-7-2010 around 11-00 a.M., when she was near the clinic of doctor Razia with her nine months old baby. The three accused persons, one being the applicant took her away in their white Corolla Car to some unknown place, which according to the complainant was told to be Karachi by the three accused persons.
2. The contents of the F.I.R would further reveal that when she was kidnapped and was being taken away in the white Corolla Car, the complainant saw her two brothers namely Barkat Ali and Shoukat Ali and cried for help who saw her and tried to chase the car but to no avail. The complainant was kept in a house and was subjected to rape by the present applicant and one day when she found that the three accused are away managed to escape, took a bus and came back to Kamber and thereafter lodged the F.I.R.
3. Under the above facts and circumstances of the case, as revealed in the F.I.R the learned counsel for the applicant argued that the narration as disclosed by the complainant in the F.I.R was nothing but concoction and an outcome of ulterior motives. It was also argued that the complainant was not recovered from the applicant and there is no material available on record to connect the applicant with the offence with which he is charged of. It was also argued that the co-accused has been granted bail by the trial court and that till date final medical certificate has not been produced by the police concerned. Delay in lodging of F.I.R was also argued.
4. On the other hand, the learned counsel for the State vehemently opposed the bail application. It was as stated that the complainant identified the, applicant and that specific role has been assigned to him in the F.I.R. Rebutting the argument of consistency, it was argued that the other two accused had been enlarged on bail as no specific role was assigned to them.
5. Heard arguments and perused the record.
6. One thing that pinches me is the fact that in terms of the F.I.R. It is categorically mentioned that upon complainant's cries, her two brothers got alert and also chased the car in which the Applicant allegedly took the complainant away after kidnapping her. It was but natural that the two brothers seeing their sister being kidnapped by some unknown persons would not react to it and give up merely because they could not chase the car. Even more astonishing is the fact that the brothers and also the husband of the complainant did not do anything about such kidnapping and remained quiet and motionless and not even attempted to report the matter to the police concerned. All this creates a reasonable doubt in my mind which must go in favour of the present' applicant. The medical report is still awaited and it is yet to come on record whether indeed the complainant was subjected to rape and that too by the applicant, as alleged.
7. The contents of the F.I.R are shaky and not clear. It is not mentioned as to whether indeed the complainant came back from Karachi or some place near Kamber inasmuch as that according to the contents of the F.I.R it is clearly mentioned by the complainant herself that she was kept in a room some distance away from Karachi. It is common knowledge that the distance from Kamber to Karachi is about 8 hours and in between there are toll collecting booths where the police is usually available. The complainant had ample time at such places to raise hue and cry and save her from alleged kidnapping. It is a matter of record that the complainant cried before for her brothers' help and she could have again cried later, when she found the opportunity/near toll booths. All of this also raise reasonable doubts in my mind.
8. Keeping in view all the above events, I am inclined to enlarge the applicant on bail subject to his furnishing surety in an amount of Rs.200,000 and P.R bond in the like amount to the satisfaction of trial Court.
9. This criminal bail application stands disposed of along with all other lgted applications.
10. The outcome of this bail application shall not in any way influence the mind of the trial court in reaching to a decision of the main case..