IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

Cr. Bail Application No.S-557of 2020

Applicant:                                Waqar Ali s/o Ramzan Lakhair,

Through Mr. Naimatullah Bhurgri,

Advocate.

Complainant:                           Saeedullah in person

State:                                       Through Mr. Muhammad Noonari,

Deputy Prosecutor General along with Investigation Officer Inspector Ghulam Hyder

Date of hearing:                       05-11-2020.

Date of Decision:                      05-11-2020.

O R D E R

ZULFIQAR ALI SANGI, J.- Through the captioned bail application, applicantWaqar Ali son of Ramzan Lakhairhas sought for pre-arrest bail in Crime No.169/2020, registered at Police Station K.N Shah, for the offences U/S 377,34,506/2 P.P.C. Earlier his bail application was declined by the learned Sessions Judge, Dadu, vide order dated 03.10.2020.

2. As per F.I.R, the applicant/accused Waqar Lakhair with two co-accused took nephew of complainant, namely, Naimatullah Lakhair, issued threats of murder to him and on the force of weapons, the applicant/accused has committed sodomy with the nephew of the complainant, while co-accused Mujahid recorded his video, thereby the applicant/accused committed offence, hence the complainant lodged the above said FIR at P.S. K.N. Shah.

3. Learned counsel for the applicant submits that there is inordinate delay of 8 months in registration of F.I.R, which has not been explained by the complainant; that F.I.R was registered with false facts; that medical report is also not favours to the prosecution case; admittedly the offence is unseen, un-witnessed and there is only hearsay evidence of the complainant; that the complainant has not mentioned proper date, time and place of alleged incident in the FIR and also complainant has not stated in FIR as to where from his nephew was picked-up by the accused persons; that there is enmity in between the complainant and applicant/accused; that co-accused Mujahid and Sajjad have already been granted bail by the learned I-Additional Sessions Judge, Mehar, vide order dated 30.09.2020, the role of present applicant/accused is on the same footing. Learned counsel for the applicant has prayed for grant of pre-arrest bail to the applicant/accused.

4. Learned D.P.G. submits that there is no contradiction in ocular evidence and medical evidence and the medical evidence is supportive to the ocular account, therefore, he has prayed for cancellation of the interim bail application of the applicant/accused.

5. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record with their able assistance.

6. Admittedly the name of the applicant/accused is transpired in the F.I.R with specific role that he has committed sodomy with the nephew of complainant and  co-accused recorded the said video; delay in registration of the FIR has been properly explained by the complainant by stating that firstly, the victim was blackmailed by the accused persons and was under threats and secondly, police was not registering the FIR, therefore, complainant approached the Justice of Peace and after the orders his FIR was registered; It is observed that delay in registration of the FIR in the like nature cases alone is no ground for grant bail.

7. The investigation officer present in court stated that he recovered the video clip in which it is clear that act of sodomy was committed with victim of the present case and he further submit that as per his investigation the applicant is also involved in other similar acts of recording naked videos of the innocent boys.Investigation officer further submits that the custody of applicant is required to investigate the matter and to recover the videos from applicant. It is observed that the crime of like nature is increasing day by day in our society which needed some deterrence measures.Learned advocate for the applicant not been able to point out any enmity in between the applicant and the complainant.

8.                The above applicant is seeking pre-arrest bail, therefore, before considering the case of the applicant for such a relief, I may observe that the conditions for grant of pre-arrest and post-arrest bail are quite different as was set out in the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427).

9.       No mala fide on the part of police officials has been pointed out by the learned counsel for the applicant. It is a well-settled principle of law that pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the investigating agency. In this regard, reference may be made to the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427) andMukhtar Ahmad v. The State and others (2016 SCMR 2064).

10.     I may observe here that while deciding bail applicationan elaborate sifting of evidence cannot be made but only a tentative assessment is permissible and a cursory glance of the record shows that applicant is involved in the commission of offence for which he charged, therefore, the interim pre-arrest bail granted to the applicant is recalled.

11.     Needless to say that the observations made hereinabove are only tentative in nature and shall not prejudice the right of either party at the trial.

12.     The above are the reasons of short order dated: 05-11-2020.

J U D G E