ORDER SHEET
IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-181 of 2022
Applicant: Khalid,
through
Mr.
Pervez Ali Sial, Advocate
Complainant: Allah Ditto along
with victim
Ambreena
in person
State: Through
Mr. Aftab Ahmed Shar,
Additional
Prosecutor General
Date of
hearing: 15.07.2022
Dated of
order:
22.07.2022
O R D E R
Shamsuddin Abbasi,
J: Applicant / accused
Khalid, seeks his post-arrest bail in Crime
No.01/2022, registered at Police Station Agra, District Khairpur, for offence
punishable under section 376 PPC, after rejection of his bail by learned trial
court vide order dated 09.04.2022.
2. Complainant Allah Ditto lodged report that his
daughter Ambreena aged about 12/13 years used to work in different houses of
the area. On 15.01.2022 she was returning home and when at about 12:00 noon she
reached at katcha path adjacent to village Bahlem, accused Khalid forcibly took
her in the sugar can crop where he committed her rape. On her cries witnesses
Shafi Muhammad and her brother Zamin Ali attracted there and on seeing the
accused fled away and they saw that her trouser was put off and she narrated
the story to them. The witnesses brought the victim girl to home where she
narrated the incident to her father / complainant; as such he lodged such
report. It was recorded on 15.01.2022 at 1900 Hours u/s 376 P.P.C. After usual
investigation challan was submitted against applicant/accused u/s 376 P.P.C.
3. learned
counsel for the applicant contended that the applicant is innocent and has been
falsely implicated in this case by the complainant due to previous enmity
between the parties; that there was delay of seven (07) hours in lodgment of
FIR without plausible explanation; that there was no mark of violence on the
body of victim; that the DNA report is negative, therefore, it is submitted
that case against applicant calls for further enquiry in terms of section 497(2)
Cr.P.C. He finally prayed for grant of bail to applicant/accused.
4. On
the other hand, learned Additional Prosecutor General, assisted by complainant
and victim has contended that the applicant is nominated in the FIR with
specific allegation of committing rape with a minor girl; that the victim as
well as other prosecution witnesses have fully supported the prosecution case
during investigation in their 161 Cr.P.C. statements; that the ocular version
is corroborated by medical evidence; that as regard to negative D.N.A. report
is concerned learned Addl.P.G. argued that at bail
stage statement of victim girl needs to give preference to forensic report;
that the offence is against the society and heinous one and comes within the
prohibitory clause of section 497 Cr.P.C, therefore applicant is not entitled
for grant of bail.
5. Heard learned
counsel for the respective parties and perused the material available on
record.
6. From
perusal of record it appears that the applicant is nominated in the FIR with
specific role of committing rape with a minor girl aged about 12/13 years old.
During investigation the victim and other prosecution witnesses have fully
supported the case of prosecution in their statements u/s 161 Cr.P.C. As per
provisional as well as final medical certificate rape has been committed with
victim Ambreena. The alleged offence falls within the ambit of prohibitory
clause of section 497 Cr.P.C. The point raised by learned
counsel for the applicant that there was delay of seven hours in lodgment of
FIR. No doubt there was delay of seven hours in lodgment of FIR but apparently
delay has been well explained by complainant in FIR by stating there in that
soon after the incident, P.ws brought victim to his house where victim narrated
the facts of the incident to the complainant, thereafter, the complainant
brought the victim girl at Police Station and obtained letter for medical
examination and they went to hospital where her medical examination was
conducted and after examination, complainant again appeared at P.S and lodged
the FIR of the incident. Learned council also failed to point any malafide on
the part of complainant for false implication of accused in the case. Learned counsel for the applicant further
contended that DNA report is negative. Perusal of final Medical-Legal Report
reveals that “Rape has been performed to victim Ambreen”. It is well settled
proposition of law that court has to make tentative assessment of the material
available on the record while deciding bail application and deeper appreciation
is not permissible at this stage. In the present case, victim and other P.Ws
have fully implicated applicant and final medical certificate also corroborates
ocular version. I am of the considered view that negative report cannot be
given preference at this stage. Deeper appreciation of evidence is not
permissible at bail stage.
7. Prima facie, sufficient material
is available on record to connect the applicant with the commission of offence
which carries capital punishment. For the above stated reasons the applicant is
not entitled for concession of bail. Resultantly, instant bail application is
dismissed. However, learned trial court is directed to conclude the trial
within three months and submit such report through Additional Registrar of this
court.
8.
The observations made hereinabove are tentative in nature and would not
prejudice the case of any party at the trial.
J U D G E
Suleman Khan/PA