IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 339 of 2021

Applicant : Qadeer Hussain alias Qadeer S/o Khadim Hussain, Shaikh

Through Ms. Abida Bibi Advocate

Respondent : The State

Through Mr. Zulfiqar Ali Jatoi, Additional PG for the State along with complainant Mst. Sobia

Dated of hearing: 16.09.2021

Date of order : 16.09.2021

O R D E R

AMJAD ALI SAHITO, J – Through instant bail application, the applicant/accused seeks pre-arrest bail in Crime No.102 of 2021 registered at Police Station ‘B’ Section Khairpur for an offence punishable under Sections 376(2) and 342 PPC. The bail plea of the applicant/accused has been declined by learned IV‑Additional Sessions Judge, Khairpur vide order dated 04.06.2021.

2. The details and particulars of the FIR are already available in the bail application and FIR, therefore same could be gathered from the copy of FIR attached with such application, hence need not to reproduce the same hereunder.

3. It is contended by learned counsel for the applicant/accused that he is innocent and has falsely been implicated in this case by the complainant due to enmity over the plot with the brother of complainant, as such there is serious malafides on the part of the complainant to implicate the applicant/accused in this false case; that there is delay of 06 six days in lodgment for the FIR, for which no such plausible explanation has been furnished by the complainant; that the ocular version as set-out in the FIR is not supported by the medical evidence, so also the DNA report is also in negative; that challan of the case has been submitted by the police and the applicant/accused is no more required for further enquiry; that in the circumstances, the case against the applicant/accused calls for further inquiry as envisaged under Sub-Section (2) of Section 497 Cr.P.C. In support of her contentions, she has relied upon the cases of Muhammad Tanvir vs. The State and others (2017 SCMR 366).

4. Learned Additional PG appearing for the State along with complainant Mst. Sobia vehemently opposed and prayed for dismissal of the instant bail application.

5. I have heard the learned counsel for the applicant/accused, learned Additional PG for the State and perused the record. It is the case of the prosecution that on 15.04.2021 at 1000 hours, the complainant Mst. Sobia went to the house of her maternal-aunt Mst. Reema situated at Luqman Khairpur accompanied by her brother’s wife namely Mst. Sapna for the purpose of getting treatment, where Mst. Salma alias Saira was also available, all of a sudden, two persons namely Qadeer Shaikh (the present applicant) and Sajad alias Sijoo Shahani entered into the house of her maternal-aunt Mst. Reema, who forcibly dragged her (Mst. Sobia) the alleged victim in the room and after administering some intoxicants, committed forcible zina with her in presence of the aforesaid female. Admittedly, there is delay of 07 days in lodgment of the FIR for which no explanation has been furnished by the complainant. The ocular version as set-out in the FIR is not supported by the medical evidence. It is admitted by the learned Additional PG that the DNA report of the victim / complainant is also in negative. Furthermore, at the time of arguments, learned counsel for the applicant/accused pleaded malafides on the part of the complainant and placed on record certain documents, showing that there is dispute between the brother of the victim/complainant and the present applicant/accused over the plot and construction thereon, therefore, in existence of such enmity the false implication of the applicant/accused at this bail stage cannot be ruled-out. The alleged place of incident is shown in the house of Mst. Reema, the maternal‑aunt of the victim / complainant, but none of them either resisted or raised any hue and cry. I am also fortified by the case of Muhammad Tanvir (supra), wherein the Hon’ble Supreme Court has held as under;-

“……………We have observed that the FIR in this had been lodged with a delay of 14 days, the Medico-legal Certificate issued in respect of the alleged victim namely Naheed Bibi (aged about 10/11 years) did not depict any mark of violence on any part of her body, the Chemical Examiner had submitted his report in the negative in respect of the vaginal swabs of the alleged victim and the report of the D.N.A test had been received in the negative. A perusal of the FIR shows that none of the eye-witnesses mentioned in the same had in fact witnessed the alleged rape himself and it was the minor victim herself who had disclosed to them that the petitioner had committed same highhandedness with her………”

Further the challan of the case has been filed and the applicant/accused is no more required for the purpose of investigation. In such circumstances, the learned counsel for the applicant/accused has made-out a case for grant of bail in view of Sub‑section (2) of Section 497 Cr.P.C. Consequently, the instant bail application is allowed and the interim pre-arrest bail already granted to the applicant/accused vide dated 07.06.2021 is confirmed on same terms and conditions. He is directed to join the trial. It is made clear that if the applicant/accused failed to appear before the trial Court, the trial Court would at liberty to take action against him in accordance with law.

6. The observations made hereinabove are tentative in nature and will not prejudice the case of either party at the trial.

Judge

ARBROHI