IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 670 of 2023.
Applicant: Shafiq-u-Rehman, through Mr. Mazhar Ali Bhutto, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 11.01.2024.
Date of Order: 11.01.2024.
ORDER
Muhammad Saleem Jessar, J- Through captioned bail application, applicant Shafique-u-Rehman son of Habib-u-Rehman Almani has sought for post arrest bail in the case emanating from F.I.R No. 94 of 2023 registered at P.S Market, Larkana, for offence punishable under Section 377-B P.P.C; after his similar plea was declined by learned Additional Sessions Judge-IV, Larkana, by dismissing his application vide Order dated 17.10.2023.
2. Brief facts of the prosecution case have already been mentioned in the impugned order in para 2, which are reproduced hereunder:
“The allegation against applicant/ accused as per aforementioned F.I.R is that on 13.09.2023 at 02.00 a.m. in a room constructed on the roof of Siddiqui Masjid located in Siddiqui Bazar Larkana, the applicant/ accused being teacher of ten or eleven years old minor boy Ghulam Mustafa, committed forcible carnal intercourse agaisnt the order of nature with Ghulam Mustafa. Consequently, on the very next day, Ghulam Mustafa disclosed such incident to his father Hakim Ali, the complainant, and his elder brohter Sartaj Ahmed and then his father got registered the F.I.R of such incident on 13.09.2023 at 10.00 p.m.”
3. Heard learned counsel for the applicant and learned Addl. P.G. appearing for the State and perused the material available on record. On last date of hearing i.e. 21.12.2023 complainant Hakim Ali appeared in person and stated that he could not engage a private counsel and shown his confidence upon the Prosecutor to proceed with the matter. Today, the complainant is not in attendance.
4. Counsel for the applicant mainly contended that the applicant/ accused is innocent and has falsely been implicated in this case by the complainant. He has further contended that, F.I.R is delayed for about fifteen hours and that medical evidence does not support the ocular version, as according to final medical certificate, which is supported by findings of the DNA Test, no act of sodomy has been committed on the person of victim boy. In support of his contention the learned counsel placed his reliance upon case of Sohail Akhtar v. The State through P.G Punjab and another reported in 2022 SCMR 1447. Lastly, learned counsel submitted that, challan of the case has been filed and applicant is in jail since 13.09.2023 and his physical custody is no more required by police. he prayed for grant of bail in favor of the applicant.
5. Conversely, learned Addl. P.G. opposed the grant of bail on the grounds that the applicant has been nominated in F.I.R with specific role of committing sodomy with victim boy; that the offence is heinous one and against the society and falls within prohibitory clause of Section 497 Cr.P.C. He, however does not controvert the submissions as raised by counsel for applicant with regard to medical evidence which contradicts the ocular version.
6. It is alleged against applicant/ accused that, he committed sodomy with victim boy (the son of complainant); however the DNA report as well as final medical certified issued by the medico-legal officer does not support the commission of sodomy with victim. The MLO Dr. Siraj Ali of CMC Hospital, Larkana, vide final medical certificate dated 13.09.2023 has opined to the effect that “on the basis of final findings mentioned in provisional certificate and DNA Analysis Report are suggestive that [No Sodomy Act has been committed].” As such, the case against applicant in view above; requires further probe. However, this aspect would be finally determined by the trial Court at trial after recording pro and contra evidence. Besides, the applicant has been in the jail for about 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. The case law relied upon by learned counsel is very relevant and applicable to the instant case.
7. Therefore, keeping in view the facts and circumstances of the case and dicta laid down in case of Sohail Akhtar (supra), prima facie, case against the present applicant requires further inquiry as contemplated under subsection (2) of Section 497 Cr.P.C. Accordingly, the bail application in hands stands allowed. Consequently, applicant Shafique-u-Rehman is granted bail subject to furnishing a solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to satisfaction of trial Court.
8. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits.
Judge
Ansari