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