MOHAMMAD HASSAN Versus State
ORDER
SHAMSUDDIN ABBASI, J.--- By this common order, I would like to dispose of Crl. B.A. No.S-564 of 2017 filed on behalf of applicants Muhammad Hassan and Muhammad Siddique under sections 498 and 498-A, Cr.P.C. for grant of bail before arrest and Crl. B.A. No.S-349 of 2018 filed on behalf of applicants Majid and Sanaullah for grant of post-arrest bail under section 497, Cr.P.C. as both the applications are arising out of one and same Crime No.209/2017, Police Station 'B' Section Khairpur under sections 363, 148, 149, P.P.C.
2. The brief facts leading to these bail applications as per prosecution case are that on 23.08.2017 complainant Mst. Sughar Khatoon lodged FIR at 1300 hours, in respect of an incident alleged to have taken place on 02.8.2017 at 1130 hours alleging therein that complainant was married to Mohammad Hassan, out of said wedlock, one son namely Imtiaz aged about 08 months and daughter Samina aged bout 3 years were born. It is alleged that her husband Muhammad Hassan used to maltreat her therefore she left the house of her husband and used to reside with her parents at Saleem Abad Khairpur and she filed suit for Khula. Complainant has further alleged that on 02.08.2017 she along with her both children, brother Ali Sher and mother Darya Khatoon after attending the Court in the said matter left for home on a Rikshaw and when they reached at link road Gujo curve at about 11-30 a.m. accused each Mohammad Hassan son of Mohammad Siddique, Mohammad Siddique son of Ghous Bux, Majid and Sanaullah both sons of Pir Muhammad, Iqbal son of not known and three other unidentified persons duly armed with pistols came in a car and forcibly on the point of weapons abducted the both children from her custody and went away, thereafter she filed application for registration of FIR against the learned Ex-officio Justice of Peace, her FIR was lodged as stated above.
3. After usual investigation, the case has been challaned against the applicants before the Court of law. Applicants Muhammad Hassan and Mohammad Siddique filed their bail before arrest application before learned trial Court, which has been dismissed vide order dated 20.09.2017 by the learned II-Additional Sessions Judge Khairpur while applicants Majid and Sanaullah filed their post arrest bail application in the learned trial Court, which has been dismissed vide order dated 05.06.2018 by learned I-Additional Sessions Judge, Khairpur.
4. Learned counsel for the applicants submit that there is a delay of 21 days in lodging of FIR as per FIR incident is alleged to have taken place on 02.8.2017 at 11-30 a.m. whereas the FIR of the incident has been lodged on 23.8.2017 at 1300 hours and no plausible explanation has been furnished by the complainant for such extra ordinary delay in lodging of FIR. They further submit that the FIR of this incident has been lodged on the directions of learned Ex-officio Justice of Peace and SHO concerned submitted his report on the application under section 22-A and B, Cr.P.C. of the complainant, which reveals that no such incident has taken place. They further submit that all the PWs are closely related to each other and issue arising between the parties is in respect of the custody of minors between father and mother. They further submit that it has been mentioned in the FIR that complainant party was going in a Rikshaw when alleged incident took place but neither Rikshaw driver was examined nor any independent person has been cited as witness to support the prosecution case. They further submit that from the contents of FIR ingredients of section 363, P.P.C. are not attracted in this case and police has misapplied the said section in this case for which the punishment is provided upto 07 years, which does not fall within the Prohibitory Clause of section 497, Cr.P.C. They further submit that there is dispute of custody between father and other of minors and complainant Mst. Sughar Khatoon, who is ex-wife of applicant Muhammad Hassan and in support of such contention, they have placed on record copy of application under section 491, Cr.P.C. filed by complainant Mst. Sughar Khatoon in the Court of learned Sessions Judge, Khairpur for the custody of the minors and learned Sessions Judge has passed order dated 08.06.2017, which reflects that the custody of minors was handed over to mother. They further submit that after handing over the custody of minor to mother, applicant Muhammad Hassan who is father of minors had approached to the Family Court at Kotdiji and filed application under Guardians and Wards Act and said case is still pending before the learned Court. They have placed reliance on the cases of Muhammad Ashraf v. SHO and others (2001 PCr.LJ 31), Muhammad Mukhtar v. SHO and 3 others (2008 YLR 2665) and Kausar Parveen v. The State (PLD 2008 Lahore 533).
5. On the other hand, learned counsel for the complainant contend that delay in the lodgment of FIR has been well explained by the complainant as the police had refused to register her case against the applicants, therefore she approached to the learned Ex-officio Justice of Peace and filed application under section 22-A and B, Cr.P.C. and after getting the orders, FIR was lodged. They further contend that the application under section 491, Cr.P.C. was filed and the custody of minor was handed over to mother/complainant, which reflects that the accused have abducted the minor from the custody of mother. They further contend that the accused are hardened criminals and accused party again abducted the minors, therefore complainant approached to this Court and filed application under section 491, Cr.P.C., which was withdrawn on the ground that she will file contempt application and she filed contempt application, which has been refused on the ground that FIR has been lodged by the complainant. They further contend that the applicants are hardened criminals and they have issued threats of dire consequences to the complainant and misused the concession of bail and launched attack upon complainant party and they are not entitled for concession of bail.
6. Learned Assistant P.G has adopted the same arguments as advanced by the learned counsel for the complainant and supported the impugned orders passed by the learned trial Courts.
7. I have heard the arguments of learned counsel for the applicants, learned counsel for the complainant, learned Assistant P.G and I have also gone through the material available on record very carefully.
8. Applicant Muhammad Hassan is ex-husband of complainant Mst. Sughar Khatoon and unfortunately differences arose between them and complainant got Khulla from applicant Muhammad Hassan and subsequently issue of custody of minors developed between them. On one hand, complainant has filed application under section 491, Cr.P.C. before learned Sessions Judge for the custody of minors where applicant Muhammad Hassan had produced minors and custody of minors was handed over to complainant (mother of minors) vide order dated 08.06.2017. On the other hand, applicant Muhammad Hassan has approached to the Family Court and filed an application under sections 7 and 10 read with section 25 of the Guardians and Wards Act, 1890, which is still pending adjudication. Section 363, P.P.C. in respect of abduction of minors at the hands of father apparently has been misapplied for mala fide reasons as held by the honourable apex Court that father is also natural and lawful guardian of the minor. However, the offence is punishable upto 07 years, which does not come within the Prohibitory Clause of section 497, Cr.P.C. and the rule for grant of bail in such cases is bail not a jail. I, therefore allow both the applications bearing Nos.S-564 of 2017 and S-349 of 2018. Prima facie a case for grant of bail to applicants is made out. Interim pre-arrest bail already granted to applicants Muhammad Hassan and Muhammad Siddique on 25.09.2017 is hereby confirmed on the same terms and condition while applicants Majid and Sanaullah are in custody, they are also granted bail after arrest subject to their furnishing solvent surety in the sum of Rs.50,000/- (Rs.Fifty Thousand) each and P.R Bond in the like amount to the satisfaction of the learned trial Court.
9. Needless to mention here that observations made hereinabove are tentative in nature and trial Court shall not be influenced by such observations while deciding the case on merits.
MQ/M-135/Sindh Bail granted.