ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 220 of 2022.
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Date of hearing |
Order with signature of Judge |
03.08.2022.
1. For orders on office objections.
2. For hearing of bail application.
Mr. Ahmed Bux Abro, Advocate for applicant.
Mr. Abdul Rasheed Abro, Advocate for complainant.
Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Abdul Mobeen Lakho, J: Through this application, applicant Ghulam Hussain son of Nazir Hussain Tunio has sought for his admission to post-arrest bail in Crime No.15/2022, registered at Police Station Drigh (District Kamber-Shahdadkot), for offences punishable under Section 377-B P.P.C.
The allegation against applicant/ accused as per F.I.R lodged by complainant Haji Tunio is that on 09.4.2022 in morning time at 08.00 a.m. near shop of Saleem Tunio in village Thorhi Bijar was dragging son of complainant, namely, Ahsan aged about 11/12 years and on seeing the complainant and PW Ghulam Muhammad Tunio, he left the boy and escaped away. The boy Ahsan on enquiry disclosed to complainant and PW Ghulam Muhammad that since the time when he was studying in the primary, the applicant who is Teacher, was compelling and threatening him to have friendship with him, otherwise he will not pass in the examination and that today accused was dragging him with intention to committed “sodomy” with him.
Learned counsel for the applicant mainly contended that, the applicant has been implicated in this case due to previous grudge, ill-will and enmity between the parties, as ten days prior to registration of the instant F.I.R, the applicant had lodged F.I.R No.14/2022 with P.S Drigh against complainant of this case for causing him injuries and extending threats and such case is pending trial. Per learned counsel, since applicant had lodged F.I.R against complainant, therefore, in order to create counter blast the present complainant has managed to register instant F.I.R with false facts, just to put pressure upon applicant to compromise with him in aforesaid case. Learned counsel further contended that, holding the victim might not be considered for the purpose of committing sodomy with him. Learned counsel further contended that the applicant has been in the jail for more than four months and case has been challaned, as such custody of applicant is not required by police.
Learned D.P.G appearing for the State assisted by learned Advocate for complainant opposed the grant of bail to applicant/ accused on the grounds that, there is no delay in reporting the matter to police; no malafides are alleged against the prosecution; the applicant has been nominated in the F.I.R; the offence is heinous one, and falls within prohibitory clause of Section 497 Cr.P.C. However, he has not been able to controvert the submissions made by learned counsel for the applicant.
It is alleged that, applicant/ accused dragged the victim boy by holding his arms with intent to commit sodomy with him, but on arrival of the complainant party he left the victim. Holding arms with whatever intent is going to be determined after the examination of the complainant and witnesses, whether it was with the intention as alleged or the arm was at all hold by the accused in reality. The case of prosecution itself is that only attempt. In these circumstances, the question, whether the applicant/ accused attempted to commit “sodomy” with victim boy or not is a question which would be determined by the learned trial Court after recording evidence at trial. It is the only word and claim of the victim boy that, when he was studying in Primary, the applicant had been compelling and threatening him for having friendship, as such application of Section 377-B would also be determined by the trial Court after recording of the evidence. In addition to the above, it needs to be kept in view that there existed previous ill-will, grudge and enmity between the parties, which is borne out from the record to the effect that, ten days prior to registration instant F.I.R the applicant had registered F.I.R against present complainant for causing him injuries and extending threats. As such, the case against applicant in view of previous ill-will and grudge between the parties also requires further probe. Besides, the applicant has been in the jail since more than four months; the investigation of this case has been finalized, and physical custody of the applicant is no more required to police for the purpose of investigation. In these circumstances continued custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
A tentative assessment of all the above factors makes the case of applicant as one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C., entitling the applicant to concession of bail. Accordingly, applicant Ghulam Hussain Tunio is granted bail upon his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.
Before parting with this order, it needs not to make clarification that the observations recorded hereinabove are tentative in nature, therefore, the trial Court shall not be influenced in any manner whatsoever while deciding the case.
Judge
Ansari