WALI MUHAMMAD Versus STATE

ORDER

1. By this order, I propose to dispose of the Criminal Bail Application No.271 of 1994 Wali Muhammad v. State and Criminal Bail Application No. 272 of 1994 Muhammad Nawaz v. State, as both these applications are filed in one and the same Crime No.13 of 1994 of Police Station Jagan at Humayoon.

2. In this case, the F.I.R. is lodged by complainant Ladho son of Jan Muhammad on 9-3-1994 at about 4-15 p.m: whereas according to F.I.R., the incident is allcged to have taken place on 8-3-1994 at 23-00 hours night. The case of the complainant briefly is that he cultivates the land. His brother Mehrab was married with Mst. Bashiran daughter of Mehardil Chacher, who was residing with his in-laws in Village Tillu Pahore Taluka Khanpur. About 7/6 months back, his brother Mebrab has come to him and was residing with him. Mehrab informed him that he was suspecting his wife Mst. Bashiran on illicit relations with Piyaro Pahore, therefore, he migrated from there. It is the case of the prosecution that on the last night, they were sleeping in the house and that there was electricity in the house. The house of the complainant is Katcha built having enclosures with entrance from southern side, which remain upon for the night. At about 12 o'clock, in the night, a Datsun Pick-up came and reached the entrance of the house. Complainant and his brother Mebrab got up and saw accused Piyaro, Suhanro, and Bakhshal all sons of Dad Muhammad, Wali Muhammad son of Muhammad Yousif (applicant/accused) Soomar son of Ghulam Kadir, Muhammad Nawaz son of Wali Muhammad (applicant/ accused) and Ghulam Mustafa son of Khamiso, all by caste Pahores, resident of Tillu Pahore. All the accused persons entered into the house of the complainant. Accused Piyaro and Bakhshal had guns, whereas other accused were armed with hatchets and Lathis.

3. It is further alleged by the complainant in the F.I.R., that, all the accused persons challenged him as to why he has got his brother migrated from the village, saying so all accused persons dragged Mst. Bashiran from the house and put her in Datsun Pick-up and at, that time Mst. Bashiran had a son aged about 1 year also with her. It is also alleged that the accused then drove away the Datsun and went away with Mst. Bashiran. Complainant raised cries which attracted Rais Kauro, Sahib Dino and others. It is alleged that the complainant narrated the facts to them and further that he waited the night in the house and in the morning he went and informed his Nekmard Hadi Bux, who was out of his house and on his arrival, he narrated the facts to him thereafter complainant went and lodged the report with police station.

4. During the investigation, both the accused/applicants were arrested by the police and submitted the challan in the Court of S.D.M., Shikarpur, from where, the case was sent up to the Court of learned Sessions Judge, Shikar pur for trial. The bail application was moved on behalf of the accused/applicants, in the Court of Sessions Judge, Shikarpur, but the same was rejected vide orders, dated 29-5-1994 and 2-6-1994. Therefore, they have approached this Court with the same prayer.

5. I have heard Mr. Yasin Khan E. Baber, learned counsel appearing for the accused/applicants, who contends that there is a delay of about 17 hours in lodging of the F.I.R. for which, there is no agy plausible explanation, which show that complainant has consumed this time in discussion and deliberation so as to rope in innocent person. According to the learned counsel for the applicants/accursed, motive is attributed to co-accused Piyaro because it is alleged that Mst. Bashiran was on illicit relations with him and that the investigation is over and accused are no more required for further investigation. Apart from that, Mst. Bashiran (abductee), has not been recovered so far to substantiate the allegations of Zina or kidnapping and that even there is no any allegation of Zina against the present applicants/accused and that the father and real son are in jail and that so for the evidence collected by the prosecution in this case against the accused/applicants is that of further enquiry about the involvement of the accused in the crime. He has also cited Francis (Muslim name Muhammad Yakoob v. The State) 1992 P Cr. L J 981, Muhammad Salleam Akhtar v. The State 1993 P Cr. L J 1545 and Muhammad Salleem Ullah v. The State 1993 P Cr. L J 1533.

6. I have also heard Mr. Gul Bahar Khan Korai, learned counsel appearing for AA.-G. for the State, who has opposed the prayer of bail and has further argued that the delay in lodging the F.I.R. is explained and that offence under section 11 of Zina is punishable with imprisonment for life, as such case of the accused/applicants is not made out.

7. I have gone through the police papers and authorities cited by the learned counsel for the accused/applicants, and from the perusal of the police papers, it is an admitted position that there is a delay in lodging of the F.I.R. and there is no plausible explanation for it and further that the motive whatsoever for committing the crime is for accused Piyaro as it is alleged that Mst. Bashiran was on illicit relations with him and that so for the police had not been able to recover the abductee Mst. Bashiran and in the absence of any A statement of Mst. Bashiran, the kidnapping or abduction prima facie cannot be established against the present accused/applicants, and that in view of the non?examination of Mst. Bashiran even allegation of Zina prima facie cannot be made out.

8. I have also gone through the authorities, which are cited by the learned counsel for the applicant, which are very much applicable on the facts and circumstances of the present case.

9. In view of the above discussion and without any incriminating evidence against the accused/applicants, as they have been finally challaned by the police, the case of the accused/applicants prima facie is that of further enquiry 8 and both the accused/applicants are ordered to be released on bail on their furnishing surety in the sum of Rs.1,00,000 (Rs. one hundred thousand only) each and P.R. bond in the like amount to the satisfaction of the learned trial Courts.

10. N.H.Q./W-95/K ????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.