ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl.Bail Appln.No.S-420 of 2020
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Date of hearing |
Order with signature of Judge |
For hearing of bail application.
08.10.2020
Mr. Amanullah Luhur, Advocate for the applicants
Mr.Irfan Badar Abbasi, Advocate for the complainant
Mr. Muhammad Noonari, Deputy Prosecutor General
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IRSHAD ALI SHAH, J.- It is alleged that the applicants with rest of the culprits, abducted Mst.Azeema, aged about 18 years and Mst.Sumaya alias Seema, aged about 14 years, both daughters of complainant Inayatullah, with intention to subject them to rape, for that the present case was registered.
2. The applicants on having been refused pre-arrest bail by learned Additional Sessions Judge, Kashmore, have sought for the same from this Court by way of instant application u/s.498 Cr.P.C.
3. It is contended by learned counsel for the applicants that the applicants being innocent have been involved in this case falsely by the police; the names of the applicants are not appearing in FIR though it is lodged with delay of about one day; Mst.Azeema has married with co-accused Awais Ahmed of her own free will and she has sought for quashment of very FIR by preferring C.P.No.D-2747/2020 (Re.Mst.Azeema and others Vs. P.O Sindh and others) before Honourable High Court of Sindh, Karachi; Mst.Sumaya alias Seema has returned to her parents under mysterious circumstances and then has implicated the applicant Akhtar and others by making statement u/s.161/164 Cr.PC; the DNA report is not implicating the applicants in commission of the incident and the very case on investigation is recommended by the police to be cancelled under “C” class, therefore, the applicants are entitled to be admitted to pre-arrest bail on point of further inquiry and malafide. In support of his contention, he has relied upon case of Muhammad Nauman Hanif Vs. The State and another (2016 SCMR-1399).
4. It is contended by learned D.P.G. for the State and learned counsel for the complainant that the applicants are neither innocent nor are involved in this case falsely; they are fully involved in commission of the incident by victim Mst.Sumaya alias Seema by making 161/164 Cr.PC statements; the delay in lodgment of the FIR is explained plausibly; the DNA report is managed one and summary for cancellation of the case under “C” class has not yet been approved by the Magistrate having jurisdiction, therefore, the applicants are not entitled for grant of pre-arrest bail on point of further inquiry. In support of their contentions, they have relied upon case of Nasreen Bibi Vs.The State (2015 SCMR-825).
5. In addition to above, it is stated by learned counsel for the applicants that co-accused Shah Jamal now has been admitted to bail after his arrest by this Court during early hours of the day.
6. I have considered the above arguments and perused the record.
7. The names of the applicants are not appearing in FIR though it is lodged with delay of about one day. No allegation of Zina is leveled against applicant Rehmatullah. Mst.Azeema has sought for quashment of very FIR by filing a petition before Honourable High Court of Sindh, Karachi, by stating therein that she has married of her own accord with co-accused Awais Ahmed. Mst.Sumaya alias Seema on return no doubt has implicated the applicant Akhtar and others in commission of the incident by making statement under section 161/164 Cr.PC, but such allegation is negated by Forensic and Molecular Report, wherein it is opined that the applicant Akhtar and other co-accused are not found to be contributor of male DNA/Semen stains/Sperm fractions identified on vaginal swab, sample of victim Mst.Sumaya alias Seema. The very case on investigation is recommended by the police to be cancelled under “C” class. In these circumstances, the applicants are found entitled to be admitted to pre-arrest bail on point of further inquiry and malafide.
8. In case of Muhammad Ramzan vs. Zafarullah and another (1986 SCMR-1380), it was held by the Honourable Court that;
“no useful purpose was likely to be served if bail of accused(respondent) was cancelled on any technical ground because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail”.
9. The case law which is relied upon by learned D.P.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. It was Sessions Trial case, yet the accused was admitted to bail by a Magistrate in excess of his jurisdiction. It was in these circumstances, the bail granted to the accused was cancelled by the Honourable Apex Court.
10. In view of facts and reasons discussed above, the interim pre-arrest bail already granted to the applicants is confirmed on same terms and conditions.
11. The instant bail application is disposed of accordingly.
J U D G E