GHULAM MUSTAFA Versus State
ORDER
ABDUL MAALIK GADDI, J.- --Through this Bail Application, the Applicants/accused are seeking post arrest bail in case FIR No.34/2018, dated 23.01.2018, under section 365-B, P.P.C. registered with P.S. Awami Colony, Karachi.
2. The Applicants/accused have approached this Court after the dismissal of their Application for post arrest Bail by the learned Xth Addl. District and Sessions Judge Karachi-East, vide order dated 17.02.2018.
3. Facts of the case as stated by Complainant in FIR as her verbatim are as under:-
"That I am residing with my family on the above titled address and on 23.01.2018 and my cousin Maha were going to market for shopping when we reached at bus stop of Korangi No.5, at about 4.30 p.m. there it one white colour Hi-Roof came there and two person were sitting there and got sit me and my cousin Maha on gunpoint and visited various places when at night they along with us were going to unknown place, when the Hi-Roof reached at KIA Road Singer Chowrangi at about 2100 hours, where police mobile was standing for checking and police signaled Hi-Roof for stopping, while driver tried to escape with Hi-roof but police officer stopped hi-roof in front and I cried that these persons are kidnapping us, in the meantime one person tried to flee but police apprehended him and inquired about his name, who disclosed his name as Ghulam Mustafa son of Muhammad All Jat and Police Officer disclosed his name as ASI Kashif Sarwar and in the presence of me and Maha, the police searched his body and found one 9 mm pistol with loaded 3 magazine rounds and on the barrel was written as 9mm/MHS/31001798 and further searched one wallet wherein NIC of Ghulam Mustafa, cash Rs.1000/- and other documents were lying in it recovered while police inquired named from another arrested person, who disclosed his name as Muhammad Hanif son of Dodo Jat from whose personal search one wallet from his side pocket of Kameez in which Rs.3,000/-, driving license and other documents were lying in it recovered and from Driver of Hi-Roof Muhammad Hanif 4 mobile phones viz. LG, Galaxy, Vigo Tel, Samsung were also recovered and at the spot the Police officer whose name revealed as ASI Kashif Sarwar, to whom I and Maha describe that they kidnapped us from Bus Stop Korangi No.5 at about 4.30 and they rounded various places and now at night they were taking us to unknown place with intention to commit Zina on which police arrested both persons with white colour Hi-Roof No.CA-2547. We informed the police officer and we have received at police station along with police mobile and ASI Kashif Sarwar and report that (1) Ghulam Mustafa son of Ali Muhammad Jat and (2) Muhammad Hanif son of Dodo Jat were kidnapping us with intention to commit Zina. Investigation be made."
4. Mr. Sharfuddin Jamali Advocate for Applicants/accused has argued that the Applicants/accused are innocent and have been falsely involved in this case with mala fide intention of Complainant as well as local Police; that as per CDR (Call Data Record) pertaining to mobile bearing No.0313-3223699 in the name of Applicant/accused Ghulam Mustafa shows his location on 23.01.2018 at about 04:27:47 p.m. to 04:50:23 p.m. was at Plot No.CB-10, Gulistan Society, Quaidabad, Karachi, while on the other hand in the so-called FIR the Complainant disclosed/stated that Applicant/accused abducted them from Korangi No.5 Stop at about 04.30 p.m. which surfaces that it is a manipulated and false story on the part of Complainant, because how it possible that the Applicant/accused could kidnape complainant while he was present at the same time at Quaidabad, not at Korangi. Whereas the location of second Applicant/accused namely Muhammad Hanif having mobile No.0310-2231093 on 23.01.2018. from 04:17:40 p.m. to 04:31:03 p.m. was surface at Plot No.CB-10, Gulistan Society, Quaidabad, Karachi and according to him all these facts indicates that the incident has not taken place in a manner as stated in FIR; that in the memo of arrest and recovery dated 23.01.2018 the recovery of pistol has been shown as 9mm with 05 live rounds, while on other hand in the FIR it has been written down that 9mm pistol has been recovered with 03 live rounds, it is self-contradictory, which also create serious doubt in the prosecution story; that the statement under section 161, Cr.P.C. of Complainant Mst. Shama and Mst. Maha is totally contradictory with statements under section 164, Cr.P.C. of Complainant Mst. Shama and Mst. Maha because in their statements under section 161, Cr.P.C. they stated that they got lift from Applicants/accused while in their statement under section 164, Cr.P.C. they disclosed that they had been forcibly got entered in Hi-Roof by the Applicants/accused; that neither in the entire prosecution story nor in memo of site inspection or memo of arrest and recovery the private/impartial/independent witness have been inserted by police even so called place of occurrence is thickly populated area being bus stop, which is crystal clear violation of section 103, Cr.P.C. which create serious doubt and requires further inquiry; that neither the Applicants/accused are previously convicted nor hardened and desperate or dangerous criminals in fact they are innocent and there is no chance of absconding of the Applicants/accused during trial, therefore, they are entitled for concession of bail. In support of his contentions he has relied upon the following case laws:-
1. Hajan and others v. The State, reported in 2014 PCr.LJ 1123.
2. Abdul Wahab and others v. The State 2017 PCr.LJ 568.
3. Wazir Ali v. The State 2008 PCr.LJ 1082.
4. Mukhtar Ahmed v. The State 2017 PCr.LJ 1092
5. Conversely, Mr. Sagheer Abbasi learned APG has opposed the grant of bail to the Applicants/accused on the ground that the name of the Applicants/accused are appearing in FIR with specific allegation that on the day and time of incident these Applicants/accused have forcibly by showing of weapon kidnapped the Complainant as well as her cousin namely Maha for the purpose of committing Zina and these Applicants/accused were arrested by the local police. He further submits that the statements of Complainant and her cousin Maha were recorded under sections 161 and 164, Cr.P.C. in which they have fully implicated the accused persons in the commission of crime, prima facie shows the involvement of the Applicants/accused in a case of serious and heinous in nature and also falls within the prohibitory clause of section 497, Cr.P.C.
6. I have given my anxious thought to the contentions raised at the at the Bar and have gone through the case paper so made available before me.
7. It has been straightway noticed that the FIR of this case was lodged promptly. The Applicants/accused are duly named in the FIR with the specific role that on the day and time of incident these Applicants/accused by showing of weapon kidnapped the Complainant and her cousin namely Maha in a Hi-Roof for the purpose of committing Zina. Police papers reveals that when the said Hi-Roof reached at KIA Road Singer Chowrangi at about 2100 hours, where police mobile was already standing for checking purpose and during checking and on crying the abductees, police apprehended the Applicants/accused and recovered one 9mm pistol with loaded magazine 03 live rounds from the possession of Applicant/accused namely Ghulam Mustafa. Such mashirnama was prepared on spot in presence of Mst. Shama and Mst. Maha. Complainant Mst. Shama and Mst. Maha in their statements recorded under sections 161 and 164, Cr.P.C. have implicated the Applicants/accused in the commission of crime/offence which appears serious and heinous in nature and the punishment of the offence as alleged against the Applicants/accused also falls within the prohibitory clause of section 497, Cr.P.C. Nothing on record that the Complainant and her cousin Mst. Maha had any enmity with the Applicants/accused for falsely involved them in this case. Even the Applicants/accused have not alleged any enmity with Complainant or her cousin in the bail application, prima face shows the involvement of the Applicants/accused in this case. During the course of arguments learned counsel for the Applicants/accused has pointed out some contradiction in between the statements recorded under sections 161 and 164, Cr.P.C. of Complainant and her cousin Mst. Maha, but these contradictions appear to be minor in nature, yet the bail cannot be granted simply on such inconsistencies in view of the nature of the case. Learned counsel for the Applicants/accused has submitted that as per "Call Data Report" the Applicants/accused were not present at Bus Stop Korangi No.5 (the place of abduction), but they were present at Plot No.CB-10, Gulistan Society, Quaidabad, Karachi. This `CDR' has been challenged by APG on the ground that the case is at initial stage. This CDR is without signatures and who had issued this CDR is a question of fact which cannot be resolved at bail stage. Be that as it may, the contentions raised by the learned counsel for the Applicants/accused relate to the deeper appreciation of evidence which is not permissible at this stage. As observed above the Complainant and her cousin Mst. Maha in their 161 and 164, Cr.P.C. Statements have implicated the accused in the commission of the offence/crime and during the arrest of the Applicants/accused one 9mm pistol with loaded magazine 03 live rounds was recovered from Applicant/accused Ghulam Mustafa, such mashirnama was prepared on spot, thus reasonable grounds are available on record to believe that the Applicants/accused have committed an offence which falls within the prohibitory clause of section 497(1), Cr.P.C. Without delving deep into the merit of the case, lest it might prejudice the case of either of the parties, it is concluded that the Applicants/accused are not found to be entitled to concession of post arrest Bail. Resultantly the Bail Application in hand is dismissed. The case law cited by learned counsel for the Applicants/accused for grant of bail has been perused and considered by me, but did not find applicable to the facts and circumstances of this case. Before parting with the order, I would like to make it clear that any observation if any, in this order is tentative in nature and shall not affect the merit of the case. It is pertinent to mention here that the case in hand appears to of abduction, therefore, trial Court is directed to proceed the matter expeditiously and decide the same preferably within the period of three months after receipt of this order. Compliance report be submitted to this Court through MIT.
MQ/G-3/Sindh Bail refused.