Muhammad Anwar v. State,
Bench: Jamal Khan Mandokhail
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This case involved five men accused of kidnapping the complainant's son under Pakistan's Penal Code provisions on abduction. The complainant alleged that on 2 October 2010, the applicants forcibly abducted his son in a vehicle, but he only filed the police report two days later, despite the police station being just one kilometer from the scene.
The accused had initially been granted bail by a Judicial Magistrate, but this was later cancelled by an Additional Sessions Judge after the complainant objected. The applicants then approached the Balochistan High Court seeking bail again.
The High Court found several weaknesses in the prosecution's case: the unexplained two-day delay in filing the FIR, the absence of any specific role attributed to each accused, and the fact that no eyewitnesses were named in the FIR. It also emerged during investigation that there was a property dispute between the parties, suggesting a possible motive for a false implication. Importantly, the alleged victim had still not been recovered, meaning the actual facts remained unclear. The court also found the lower judge's claim that the victim was in the accused's custody to be unjustified, since there was no evidence to support it.
Since investigation was complete and the accused were no longer needed for questioning, the court held that bail should not be denied as a form of punishment. It granted bail, emphasizing that its observations were tentative and should not influence the trial court's final judgment.
یہ مقدمہ پانچ افراد سے متعلق ہے جن پر پاکستان کے تعزیرات کے تحت اغوا کے قانون کی دفعات کے تحت مدعی کے بیٹے کو اغوا کرنے کا الزام تھا۔ مدعی کا کہنا تھا کہ 2 اکتوبر 2010 کو درخواست گزاروں نے اس کے بیٹے کو زبردستی ایک گاڑی میں اغوا کر لیا، تاہم اس نے پولیس رپورٹ دو دن بعد درج کروائی، حالانکہ تھانہ واقعے کی جگہ سے محض ایک کلومیٹر کے فاصلے پر تھا۔
ملزمان کو ابتدائی طور پر ایک جوڈیشل مجسٹریٹ نے ضمانت دے دی تھی، لیکن بعد ازاں مدعی کے اعتراض پر ایڈیشنل سیشن جج نے یہ ضمانت منسوخ کر دی۔ اس کے بعد درخواست گزاروں نے بلوچستان ہائی کورٹ سے دوبارہ ضمانت کے لیے رجوع کیا۔
ہائی کورٹ نے استغاثہ کے مقدمے میں کئی کمزوریاں پائیں: ایف آئی آر درج کرانے میں دو دن کی غیر واضح تاخیر، ہر ملزم کا مخصوص کردار بیان نہ کیا جانا، اور یہ کہ ایف آئی آر میں کسی چشم دید گواہ کا نام درج نہیں تھا۔ تفتیش کے دوران یہ بات بھی
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2011 P Cr. L J 711
[Quetta]
Before Jamal Khan Mandokhail, J
MUHAMMAD ANWAR and 4 others ---Applicants
Versus
THE STATE ---Respondent
Criminal Bail Application No. 270 of 2010, decided on 11th January, 2011.
Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss.365 & 34 ---Kidnapping or abducting with intent secretly or wrongfully to confine per son, acts done by several persons in furtherance of common intention ---Bail, grant of ---Further inquiry ---F.I.R. was lodged with unexplained delay of two days ---No specific role was assigned to the accused ---Property dispute between the complainant and the accused made the case of accused one of further inquiry ---Names of the eye -witnesses were not mentioned in the F.I.R. ---Alleged abductee having not been recovered yet, prosecution story was still shrouded in mystery ---Additional Sessions Judge's observati on that the abductee was in the custody of accused was unjustifiable and unwarranted ---Alleged offence did not fall within prohibitory clause of S.497, Cr.P.C. --- Investigation of the case having been completed, accused were no more required for further investigation ---Bail could not be withheld as a punishment ---Bail was granted.
Muhammad Ilyas for Applicants.
Date of hearing: 31st November, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---By this application, prayer has been made for release of the a pplicants on bail, involved in a case crime No.68 of 2010, under section 365 read with section 34 of the P.P.C., registered at Police Station, Surab.
Complainant Haji Muhammad Waris in his report dated 4 -10-2010 alleged that on 2 -10-2010 at about 7 -30 p.m. at Killi Surkh, Surab, the applicants came in a white colour vehicle `Surf' and forcibly abducted his son Muhammad Akbar.
Initially, on arrest of the applicants, they moved an application for grant of bail before the Judicial Magistrate, Surab, which was allowed by means of order dated 18 -10-2010 and, subsequently, the Additional Sessions Judge, Kalat, on the application of the complainant, cancelled the bail vide order dated 11 -11-2010, hence this application.
I have heard the learned counsel for th e applicants and have gone through the documents attached with the application. A tentative perusal of record shows that the F.I.R. has been registered with inordinate and unexplained delay of two days, despite the fact that the police station is situated at a distance of one kilometer from the place of occurrence. No specific role has been assigned to the applicants regarding abduction of the son of the complainant. Although the complainant has not shown the motive behind the incident, but during the inves tigation, it has come on record that there exist some property dispute between the parties and in such view of the matter, the applicants have been able to make out a case of further inquiry.
As regards the observations of the Additional Sessions Judge, Kalat on the point of jurisdiction of the Court and that the incident was seen by the eye -witnesses, suffice it to say that the complainant has not mentioned in the F.I.R. the names of said eye -witnesses. No other evidence has come on record to say that th e accused/applicants have demanded any ransom from the complainant. Even otherwise, the abductee has yet not been recovered, therefore, the real picture is still shrouded in mystery, as such, the observation of the Additional Sessions Judge that the abduct ee is in the custody of the applicants is also not justifiable and unwarranted. In such view of the matter, the jurisdiction of the ordinary Court is not barred and the observations of the Additional Sessions Judge to this extent are hereby expunged, as th e same would, obviously, prejudice the case of either party.
The offence mentioned in the F.I.R. does fall within the prohibitory clause of section 497, Cr.P.C. Investigation in the case has been completed and applicants are no more required for further investigation or interrogation, wherefor, bail cannot be withheld as of punishment.
Thus, in view of above, without touching further merits or demerits of the case, I am inclined to accept the application and enlarge the applicants on bail, subject to fu rnishing surety bonds to the tune of Rs. 200,000 each and P.R. of the like amount to the satisfaction of the trial Court. The above Observations are purely of tentative in nature, hence, the trial Court shall not influence from the instant order.
These a re the reasons of my short order dated 30 -11-2010 announced in the open Court.
A.R.K./6/Q Bail granted.