SHC grants bail to man in girl’s kidnapping and rape case

The Sindh High Court has granted bail to a man in a girl’s kidnapping case in which he has also been charged with underage marriage.

Applicant Kaleemullah has approached the court for obtaining bail on charges of kidnapping a girl from the Malir area. According to the prosecution, the applicant had kidnapped an underage girl for the purpose of rape.

The applicant’s counsel submitted that his client has not committed any offence and the alleged abductee voluntarily entered into marriage with him, and such a mutual contract was legal. He said the applicant could not be charged with kidnapping and rape as the underage girl after recovery did not depose any word regarding rape against the applicant and the case required further investigations.

The additional prosecutor general supported the dismissal of bail on the ground that the applicant was nominated in the FIR; however, he could not controvert the fact that the alleged abductee had not deposed against the applicant regarding the commission of rape with her in her statement before the judicial magistrate.

The complainant’s counsel submitted that the victim is an underage girl and her case falls under the Sindh Child Marriage Restraint Act, but the police did not register the case under that law. The counsel requested the court to dismiss the application.

A single bench, headed by Justice Mohammad Saleem Jessar, after hearing the arguments of the counsel, observed that though the applicant has been nominated in the FIR with the specific role of abduction with the intention to rape the victim, the abductee at the time of her statement had not levelled the rape allegation against the applicant.

The court observed that even the victim had not deposed that she was enticed away or abducted by the applicant for the purpose of committing rape with her. The court observed that victim had deposed that the applicant had kept her in his house and she was not harassed or humiliated in any manner.

It further observed that not a single witness was cited or nominated by the alleged abductee in her statement except the words that the applicant allegedly asked her to accompany him and she followed, which culminated in the FIR. The court said the applicant has been in custody right from the date of his arrest; however, no legally admissible piece of evidence has been brought on record by the prosecution during the investigation, except the mere allegation of abduction, which may connect him with the commission of the alleged offence.

It observed that as per the medical report, the age of the girl has been declared to be about 16 to 17 years and in light of the medico-legal opinion the alleged abductee could be termed an adult and was capable of enter into marriage as well as giving consent for marriage.

The court noted that the alleged abductee had not denied having entered into marriage with the applicant nor had after her recovery she filed any suit seeking dissolution of marriage by way of Khula.

It said it is a well-settled principle of the law that mere involvement in heinous crime is no ground to withhold bail from an accused who otherwise becomes entitled to the concession of bail.

The court also observed that it is also settled that if a person is wrongly admitted to bail, then it can be repaired with by putting him in jail at the time of conviction. However, in case, after remaining in incarceration for a long period, he is found innocent then he cannot be compensated for the golden days he had spent in incarceration during the pendency of the trial.

The court observed that the applicant has made out a good prima facie case of further inquiry and granted him bail for a surety of Rs1,00,000. It said observations made in the order are tentative in nature and shall not prejudice the case of either party during the trial.