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