AHMAD KHAN Versus THE STATE
This matter arises from a criminal case where an FIR was registered alleging the enticement of a young woman by the principal accused, Ahmed Khan Mari. During the proceedings, a notice was issued to a co-accused, Dr. Muhammad Ibrahim Memon, concerning his pre-arrest bail granted by the trial court. The core legal question examined by the High Court was whether the co-accused, a doctor whose employee was the principal accused and who merely assured the complainant of help in recovering the abducted girl, could be considered privy to the commission of the offence or liable for abduction or Zina. The Sindh High Court held that offering an assurance of help for the restoration of a victim does not make a person privy to the offence, and that the trial court's order granting and confirming bail suffered from no illegality or infirmity. Consequently, the court laid down the principle that mere subsequent assurance to assist in the recovery of an abducted person, absent any direct allegation of participation in the crime, does not justify denying or cancelling bail.
- Does offering an assurance to help recover an abducted person make a person privy to the commission of the offence?
- Whether the bail granted to a co-accused by the trial court can be interfered with when there is no direct allegation of abduction or Zina against him?
- Is a person who employs the principal accused liable for the criminal acts of the employee without direct involvement?
ORDER
1. The facts leading to present case are that on 10-11-2002 F.I.R. No.155 was registered at Police Station Naushahro Feroze alleging therein that one Mst. Rubina daughter of Janan Leghari aged, about 18 years was enticed away by accused Ahmed Khan Mari on the night of 6/7-11-2002 at unknown time. The principal accused Ahmed Khan Mari applied for bail before the trial Court and his bail plea was dismissed by order, dated 6-1-2003. Therefore, he approached the High Court and his bail plea was dismissed by order, dated- 5-5-2003 and notice was issued to co-accused Dr. Muhammad Ibrahim Memon.
2. I have heard Mr. Abdul Fattah Malik learned counsel on behalf of accused Dr. Muhammad Ibrahim, and Mr. Ghulam Dastagir Shahani learned Additional Advocate-General on behalf of the State. The latter states that the notice issued to co-accused Dr. Muhammad Ibrahim may be vacated and he may be allowed to remain on bail granted by the trial Court.
3. The perusal of material placed on record as well as police record examined with the assistance of learned Additional Advocate-General shows that the principal accused Ahmed Khan Mari was employee of co accused, Dr. Muhammad Ibrahim. After the enticement, parents of prosecutrix contacted the doctor for the restoration of girl. Doctor assured them for the restoration of prosecutrix. Complainant party visited him many times but finally Doctor showed his inability. There is no allegation in the F.I.R. that co-accused Dr. Muhammad Ibrahim abducted/kidnapped the girl nor there is any allegation against him that he had any 'illicit intimacy with the girl or committed Zina with her. Only allegation is that principal accused was serving in his private hospital and Doctor assured the complainant to help him for the restoration of the girl. For the assurance of help, one cannot be dubbed as privy to the commission of offence. It will be pertinent to reproduce herein below the impugned order of trial Court:--
4. "Order., 12-11-2002.
5. Heard the learned defence counsel and learned I.C./D.A. Learned defence counsel states that applicant/accused is Government servant and by profession is Doctor and working as senior Medical Officer at Civil Hospital, N. Feroze and the police is behind him, as such if the interim relief is not granted, he will be humiliated by the police. I have also received a letter from N. Feroze Police that the accused is required and permission maybe given for his arrest, which shows the interest of police behind the accused because without notice they have appeared in the Court.
6. As per F.I.R. Mst. Rubina has been, abducted by the co accused Ahmed Khan. However, the allegation against the applicant/accused, who is by profession Doctor is that co accused Ahmed Khan is his servant and complainant party met with the, applicant/accused and he stated that mistake has been committed by the co-accused and the girl will be returned to them. There is neither allegation of abduction nor Mina against the present applicant/ accused, therefore, without touching to the merits of the case; the interim bail is granted , to, the applicant/accused in the sum of Rs.50,000 and P.R. Bond in the like amount. Adjourned... for, confirmation etc. Call police papers.
7. Announced in open Court.
8. Given under my hand and seal of this Court, this 12th day of . November, 2002.
9. (Sd.) 12-11-2002
10. (Manthar Ali Jatoi)
11. I/C Sessions Judge, N. Feroze.
12. Further order
13. Heard learned D.C. and D.A.A. The latter has no objection to the confirmation of bail. As such bail of accused is hereby, confirmed on same terms and conditions.
14. (Sd.) 26-11-2003
15. (Manthar Ali Jatoi)
16. I/C Sessions Judge, N. Feroze.",
17. The order of the trial Court reproduced hereinabove does not suffer from any illegality or infirmity and is in consonance with law and C facts of the case. Resultantly notice issued against Dr. Muhammad Ibrahim is hereby, recalled.
18. H.B.T./A-514/K Bail confirmed.