ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 799 of 2022

(Hammad Khan and another Vs. The State)

DATE ORDER WITH SIGNATURE OF JUDGE

1. For orders on office objection at A

2. For hearing of bail application

01.08.2022

Mr. Jamil Abbas advocate for the applicants

Mr. Talib Ali Memon Assistant P.G Sindh

-.-.-.-.-.-.-.

IRSHAD ALI SHAH, J. It is the case of prosecution that the applicants with rest of the culprits in furtherance of their common intention, prepared obscene video of complainant Mst. Malaika, a girl aged about 15 years and then subjected her to rape by resorting to blackmailing and keeping her under threat of murder, for that the present case was registered.

The applicants on having been refused bail by learned X-Additional Sessions Judge, Karachi West have sought for the same from this Court by way of instant bail application under section 497 Cr.P.C.

It is contended by learned counsel for the applicants that they being innocent have been involved in this case falsely by the complainant; FIR has been lodged with delay of about nine days; the challan of the case has been submitted with delay of about four months; the allegation of rape is against co-accused Jan Muhammad alias Sunny and Osama; co-accused Shahbaz has already been admitted to bail by learned trial Court, therefore, applicants are entitled to be released on bail on the point of further inquiry and consistency. In support of his contention, he relied upon case of Muhammad Tanvir vs. The State and others (2017 SCMR 366), Atif Zareef and others vs. The State (PLD 2021 S.C 550) and Amjid Khan Vs. The State through A.G Khyber Pakhtunkhwa and others (2021 SCMR 1458).

None has come forward to advance arguments on behalf of the complainant. However, learned Assistant P.G for the state by rebutting the contention of learned counsel for the applicants has sought for dismissal of the instant bail application by contending that the interim challan of the case was submitted timely and co-accused Shahbaz was admitted to bail being boy of tender age.

Heard arguments and perused the record.

The applicants are named in FIR with specific allegation that they after keeping the complainant, an innocent girl aged about 15 years under threat of death on pointation of weapons made her naked and then recorded her obscene video and then got her raped through co-accused Jan Muhammad alias Sunny and Osama by resorting to blackmailing her. In that situation, it would be premature to say that the applicants being innocent have been involved in this case falsely. It is case of vicarious liability, therefore, it would be premature to determine liability of each and every accused individually at this stage. No person of prudent mind particularly a young girl would ruin her entire life by levelling a false allegation of rape with her against innocent persons. On medical examination she was not found to be virgo intacta. There is direct evidence by the complainant against the applicants which prima facie connect them with the commission of incident. No doubt co-accused Shahbaz has already been admitted to bail by learned trial Court, but it was done only for the reason that he was the person of tender age. The applicants are not alleged to be of tender age. No doubt the final challan of the case was submitted beyond prescribed period, but it was for unavoidable circumstances. The deeper appreciation of the facts and circumstances is not permissible at bail stage. There appear reasonable grounds to believe that the applicants are guilty of the offence with which he is charged.

The case law which is relied upon by the learned counsel for the applicants is on distinguishable facts and circumstances. In case of Muhammad Tanveer (supra), the accused was admitted to bail mainly for the reason that co-accused was declared innocent by the police. In the instant case no co-accused is declared innocent by the police. In case of Atif Zareef (supra), the decision was rendered by Honourable Apex Court after dismissal of appeal of the appellant by Hon’ble High Court. In the instant matter, no conviction is recorded against the applicants to be examined by this Court. In the case of Amjid Khan (supra), issue of delay in submission of challan was discussed by Honourable Apex Court, the same of course to be discussed by learned trial Court at the final disposal of the case, if need be.

In view of above, it is concluded safely that no case for grant of bail to the applicants is made out. Consequently, the instant bail application is dismissed with direction to learned trial Court to dispose of the very case within three months after receipt of copy of this order.

Needless to say that the observations recorded above are tentative in nature and same may not prejudice the case of either of the party at trial.

JUDGE