IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 359 of 2021

Applicant : Arshad Ali S/o Sahib Dino Rid

Through Mr. Nizamuddin Noonari, Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG for the State

Dated of hearing: 16.08.2021

Date of order : 16.08.2021

O R D E R

AMJAD ALI SAHITO, J – Through this bail application, the applicant/accused seeks post-arrest bail in Crime No.136 of 2020 registered at Police Station Kotdiji, District Khairpur for an offence punishable under Section 376(ii) PPC. The bail plea of the applicant/accused has been declined by learned IV-Additional Sessions Judge, Khairpur vide order dated 04.05.2021.

2. The facts of the prosecution, briefly stated are that on 22.09.2020 at 1800 hours, complainant Muhammad Ramzan appeared at Police Station Kotdiji and lodged the FIR; that on 20.09.2020 his daughter Mst.Sofia went to the nearby Imambargah for mourning but did not return, therefore, he along with his wife Mst. Zaheeran and maternal-cousin Gulsher went in her search. It was 11:45 pm, when they reached near the house of Arshad Rid, they heard the cries, electric bulbs were glowing they rushed toward there and saw that accused Shaman Ali was holding his daughter Mst. Sofia of her arms, her Shalwar was removed while accused Arshad Ali was committing zina with her (Ms.Sofia), hence on seeing them (complainant party) coming, the accused left Mst. Sofia and escaped away. Thereafter, the victim Ms. Sofia narrated the facts that on return from Imambargah she was forcibly dragged by accused Arshad Ali and Shaman Ali and committed zina with her. The complainant thereafter narrated such facts to the nekmards but all in vain, hence such FIR was lodged as stated above.

3. It is contended by learned counsel that the applicant/accused is innocent and has falsely been implicated in this case by the complainant infact no such incident had taken place; that there was enmity between the complainant and applicant, therefore, the false implication of the applicant cannot be ruled-out; that the statement of victim Ms. Sofia was recorded u/s 164 Cr.P.C by learned Magistrate, wherein she has exonerated the co-accused Shaman. It is further contended that the further statement of the complainant Muhammad Ramzan was also recorded by the Investigating Officer, in which he has also exonerated the co-accused Shaman by adding the name of Bilawal in the incident, which makes the case of the prosecution doubtful and one of the further inquiry. He lastly prayed for grant of bail to the applicant/accused.

4. Learned DPG for the State prayed for dismissal of instant bail application by contending that the name of the applicant/accused is specifically mentioned in the FIR with the role that he has committed zina with the victim Ms. Sofa; that the ocular version furnished by the complainant and PWs is supported by the medical evidence, therefore, at this stage the applicant cannot be absolved from the commission of the offence. In support of his contentions, he has relied upon the case of Amanullah vs. The State (PLD 2009 Supreme Court 542).

5. I have heard the learned counsel for the applicant/accused, learned DPG for the State and perused the record. As per the FIR, the applicant/accused has been assigned the specific role of committing forcible zina with victim Ms.Sofia, when she was returning to her house from mourning at the nearby Imambargah. The ocular version furnished by the complainant, PWs as well as the victim in her 164 Cr.P.C is fully supported by the medical evidence. The offence with which the applicant/accused is charged is against the society, therefore, in such circumstances, the applicant/accused has not been able to make out a case for grant of bail. Consequently, the instant bail application being devoid of merits is dismissed.

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

Judge

ARBROHI