ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 1149 of 2016

Applicant:                             Ghulam Kabir alias Rajo s/o. Ghulam Fareed,

                                                through Mr. Abdul Rasheed Nizamani,

                                                Advocate.

Respondent:                          The State, through Mr. Abdullah Rajput, APG.

Date of hearing:                    25.01.2017

Date of order:                        25.01.2017

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O R D E R.

Zafar Ahmed Rajput, J:-     Having rejected his earlier bail application bearing No. 1505 of 2016 by the learned Additional Sessions Judge-V, Karachi East,  vide order dated 25.07.2016, applicant/accused Ghulam Kabir alias Rajo s/o. Ghulam Farid, through instant Criminal Bail Application seeks post-arrest bail  in Crime No. 306 of 2016, registered at P.S. Zaman Town, Karachi South under Section 376/511 P.P.C. 

2.         The allegation against the applicant/accused is that on 04.06.2016 at about 1430 hours he took the daughter of complainant, namely, Mariam aged about 8 years in his house bearing No. Y-427, Korangi No.1½ and by removing her Shalwar, he forcibly attempted to commit rape with her.

3.         The learned counsel for the applicant/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case; that infact the complainant and applicant/accused are residing in the same vicinity and there was a quarrel between the ladies of the families; hence, the complainant due to her influence falsely implicated the applicant/accused in this case; that there is no independent witness in this case; therefore, the guilt of the applicant/accused requires further probe; that the applicant/accused is a minor aged about 15 to 16 years; hence, he is entitled for the concession of bail in view of Section 10(7) of Juvenile Justice System Ordinance, 2000. In support of his contentions, the learned counsel for the applicant/accused has relied upon the case of Afsar Zamin vs. The State (PLD 2002 Karachi 18), Sikandar vs. The state (2006 P.Cr.L.J. 1648), Zaher vs. The State (2007 SCMR 1178), Mehar alias Mehaar vs. The State (2009 P.Cr.L.J. 47), Ayub Khan vs. The State (2012 YLR 1015), Ali Gohar alias Igloo vs. The State (2012 YLR 873), Shah Zaib vs. State (PLJ 2013 Cr.C. (Peshawar) 641), Muhammad Ahmed Javed vs. Stat, etc. (PLJ 2013 Cr.C. (Lahore) 623) and Khadim Hussain Bhayo vs. The State (2013 YLR 1382).

4.         On the other hand, learned APG has vehemently opposed this application on the ground that the applicant/accused was apprehended by the Muhallah people and PW Arshad Siddiqui rescued the minor baby Mariam, when he heard her crying from the house of applicant/accused; that the minor baby, who is aged about 8 years has fully implicated the applicant/accused in her statement; that the medical report also supports the fact that the attempt of rape was made by the applicant/accused; as such, there is sufficient material available on record to connect the applicant/accused with the commission of alleged offence; hence he is not entitled for the concession of bail.  As regard the arguments of learned counsel for the applicant/accused that the applicant being aged of 15/16 years is entitled to concession of bail in view of Section 7 of the Juvenile Justice System Ordinance, 2000, the learned APG has submitted that this ground has not been agitated by the applicant before the trial Court; therefore, he cannot be permitted to raise this ground first time before this Court.

6.         I have heard the learned counsel for the parties and perused the material available on record.

7.         As regard the arguments of learned counsel for the applicant on the point of application of relevant provisions of the Juvenile Justice System Ordinance, 2000, it may be observed that the applicant till date has not moved for declaring him juvenile and until and unless he is declared juvenile by the competent Court of law, he cannot be given benefit under the Ordinance of 2000.

8.         It appears that the alleged incident took place on 04.06.2016 at about 1430 hours and the complainant lodged the F.I.R. promptly on the same day at 1545 hours. The applicant alleges enmity against the complainant but there are as many as six Muhallah people have been cited as PWs in the calendar of witnesses against whom no enmity has been alleged by the applicant/accused. Out of them PW Arshad Siddiqui has categorically stated in his 161 Cr.P.C. statement that on hearing the cries of minor baby he entered into the house of the applicant/accused and got her down, who disclosed him about the attempts committed by the applicant/accused with her. As per medico-legal certificate of the applicant/accused he is capable to perform sexual intercourse. As per report of Chemical Examiner the human sperm were found on the clothes of the victim. From the tentative assessment of the material available on record it appears that sufficient evidence is available with the prosecution to connect the applicant/accused with the commission of alleged offence; therefore, he is not entitled to the concession of bail. The case-law cited by the learned counsel for the applicant proceed on different facts and do not advance his case for the grant of bail. I, therefore, dismiss this bail application accordingly.  

9.         Needless to say that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant/accused on merits.

JUDGE

Athar Zai