IN THE HIGH COURT OF SINDH

AT KARACHI

 

Criminal Bail Application S-609 of 2021

 

Babar Kalhoro

vs.

The State

 

For the Applicant / Accused       :         Mr. Abdul Rahman A. Bhutto     Advocate

 

For the Prosecution / State        :         Mr. Aitbar Al Bullo, D.P.G.

 

For the Complainant                  :         Mr. Farhat Ali Bugti

                                                          Advocate

                                                         

Date of hearing                         :         28.02.2022

 

Date of announcement              :         28.02.2022

 

ORDER

 

Agha Faisal, J.     The applicant seeks post-arrest bail, in respect of F.I.R. 13 of 2021, registered on 15.03.2021, before P.S. Areeja, District Larkana, pertaining to alleged offence/s under Section/s 365-B, 376, 457, 34 P.P.C.

 

2.            Learned counsel submits that the earlier pleas for bail by the applicant were rejected by the Court of the 3rd Additional Sessions Judge, Larkana vide order dated 15.09.2021, and the Court of the IV-Additional Sessions Judge, Larkana in 2nd Cr. Bail Application in S.C.No.516 of 2021 respectively, hence, the present proceedings.

 

3.            After considering the submissions of the learned counsel and sifting[1] through the material placed before the court, for and against the applicant, reproduction whereof is eschewed herein[2], it is observed as follows:

 

a.    The allegation of the complainant is abduction and rape, however, in so far as the applicant is concerned it is his mere presence that has been belatedly alleged.

 

b.    Learned counsel for the applicant pleaded entitlement to the concession of bail on the premise inter alia that the F.I.R is delayed by almost two months and even then the applicant has not been implicated therein; the applicant is not even nominated in the 161 Cr.P.C. statement; the applicant was added in the 164 statement, however, even then no allegation of rape is made there against.

 

The learned D.P.G. articulates no cavil to the record that the applicant was neither nominated in the belated F.I.R nor in the 161 statement and submits that perhaps the present facts and circumstances do qualify the case for further enquiry. 

 

Mr. Farhat Ali Bugti, advocate files vakalatnama on behalf of the complainant, which is taken on record. He opposes the concession of bail and submits that the accused were jointly arrested; due to the honour and dignity of the victim, the F.I.R was not registered until two months later when it was discovered that the victim was pregnant; it was also added that common intention is sufficient in such cases, hence, the applicant is not entitled to the grant of bail.

 

c.    It is observed that no FIR is registered until almost two months post the date of the alleged offence and per the complainant's counsel, the FIR was only registered once the alleged victim was discovered to be pregnant. Admittedly, the applicant is neither nominated in the FIR nor mentioned in the 161 statement. The 164 statement also does not allude to anything more than the alleged presence of the applicant.

 

d.    Upon tentative[3] assessment of the material[4] collected by the prosecution, for and against the applicant, it is manifest that the case, pertaining to the involvement of the applicant / accused in commission of the alleged offence, merits further enquiry

 

e.    It is also observed that the present case does not fall within the ambit of exceptions[5] illumined in the Tariq Bashir case[6]. The material placed before the Court does not indicate any criminal record of the applicant, in cases of an identical nature or otherwise; no argument has been articulated requiring the applicant’s presence for further investigation at this stage or denoting him as a flight risk; no apprehension has been expressed with regard to tampering of evidence by the applicant or repeating the offence/s, if enlarged on bail; hence, no cause is apparent presently warranting the continued incarceration of the applicant pendente lite.

 

4.            Therefore, it is the assessment of this Court that the learned counsel for the applicant has made out a fit case for grant of post arrest bail, hence, the applicant is hereby admitted to bail, subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousands only) and a personal recognizance bond, in the like amount, to the satisfaction of the learned trial Court.

 

5.            It is considered pertinent to record that the observations herein are of tentative nature and shall not influence and / or prejudice the case of either party at trial.

 

JUDGE


[1] Shoaib Mahmood Butt vs. Iftikhar Ul Haq & Others reported as 1996 SCMR 1845.

[2] Chairman NAB vs. Mian Muhammad Nawaz Sharif & Others reported as PLD 2019 Supreme Court 445; Muhammad Shakeel vs. The State & Others reported as PLD 2014 Supreme Court 458.

[3] Shahzaman vs. The State reported as PLD 1994 Supreme Court 65.

[4] Asif Ayub vs. The State reported as 2010 SCMR 1735.

[5] Zafar !qbal vs. Muhammad Anwar & Others reported as 2009 SCMR 1488; Subhan Khan vs. The State reported as 2002 SCMR 1797.

[6] Tariq Bashir & Others vs. The State reported as PLD 1995 Supreme Court 34.