ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr. Bail  Appl. No.697  of 2009          

           

DATE         ORDER WITH SIGNATURE OF JUDGE

 

23.11.2009.

 

Mr. Ayaz Hussain Tunio, Advocate for applicants.

Mr. Syed Roshan Ali Shah Bukhari, advocate for complainant.

                        Mr. Shahid Ahmed Shaikh, A.P.G Sindh.

                                                            =                     

Ahmed Ali Shaikh J:             The applicants Khuda Bakhsh alias Munu and Hameed seek post arrest bail in crime No.80 of 2009 of PS Tando Bago for the offence under sections 377, 337-A(i), 337-F(i), 337-L(ii) & 504 PPC.

 2.                    The bail plea of the applicants has been turned down by the learned Sessions Judge, Badin vide order dated 23.10.2009.

3.                     The contents of the prosecution case in nutshell are that on 09-09-2009 one Vikiyo son of Jiand by caste Jamali lodged FIR with PS Tando Bago stating therein that on 08-09-2009 at 2130 hours while he was going to village Hajif Jamali accused each Munu (2) Deedar (3) Hoshiyar and (4) Hameed met him who stopped him and after giving him kicks and fists they forcibly overpowered him, thereafter they forcibly removed his shalwar, accused Deedar sat  over his shoulders, co-accused Hoshiyar caught hold his legs while accused Munu and Hameed forcibly committed sodomy with him and thereafter they left the scene. Complainant went to Village of his cousins where he appraised the facts to Imam Bakhsh and Rawat and due to night ours he stayed there. On next morning he went to his village and disclosed the facts to his brother Naseer Ahmed. They both went to the nekmurd of the village but he did not pay any heed and ultimately he lodged the report.

4.                     After usual investigation police submitted the report before learned Civil Judge & Judicial Magistrate, Tando Bago on 30-09-2009 with the recommendation that the case be cancelled under N.C Class. The learned Magistrate did not concur with the report and issued directions to the Investigating Officer to submit the challan against the accused. On the direction of the learned Magistrate police submitted the challan.

5.                     It is inter alia contended by the learned counsel for the applicants that the alleged incident had taken place on 08-09-2009 at 2100 hours whereas the victim was examined on 09-09-2009 at 12-30 a.m while the FIR was registered on 09-09-2009 at about 2140 hours and prosecution did not furnish any plausible explanation in this regard, therefore, no sanctity can be attached to the prosecution version. Learned counsel further contended that the Doctor is not certain about the commission of offence and in his medico-legal certificate he has opined that there may be act of sodomy and per medical certificate there is no injury on the buttock and anal region of the victim; the anal swabs were taken and sent to the chemical examiner but no positive report has been come out on record. He further went on to say that chemical report shows that from the swabs no human sperm was detected; the memo of injuries reveals that it was prepared on 07-09-2009 at 2200 hours whereas alleged incident took place on 08-09-2009, therefore, the entire case seems to be a false and fabricated. He lastly contended that one of the P.Ws namely Nabi Bakhsh did not support the case of prosecution in his 161 Cr.P.C statement, which was recorded on 19-09-2009 but he merely stated that a quarrel had taken place but no act of sodomy has been committed by the accused, therefore, the case of the applicants fall under subsection 2 of section 497 Cr.P.C and requires further inquiry. The learned counsel has relied upon the case of Ghulam Raza and another.Vs.The State (PLJ 2003 Cr.C (Lahore) 852), case of Tahir and another.Vs.The State (1999 P.Cr.L.J 942) and case of Muhammad Ramzan alias Shamma.Vs.The State (2007 P.Cr.L.J 413).

6.                     Conversely, the learned State counsel assisted by Syed Roshan Ali Shah Bukhari, advocate for the complainant opposed the bail plea of the applicants on the ground that the names of the applicants have been given in the FIR and they had committed the unnatural offence, therefore, they do not deserve the concession of bail.

7.                     Heard learned counsel for the applicants as well as learned State counsel assisted by learned counsel for the complainant who adopted the arguments of State counsel.

8.                     The alleged incident had taken place on 08-09-2009 whereas the FIR was lodged on 09-09-2009 at 2140 hours and for such no plausible explanation has been furnished by the prosecution. The complainant is present in person in the Court who seems to be very healthy and well built, per medical certificate his age has been shown as 22 years, whereas he looks more than 22 years old and from his physical appearance it is unbelievable that he can be made victim of sodomy. From the contents of the FIR it reveals that conduct of the complainant/victim is very strange and against normal human conduct. He did not raise hue and cry at the time of commission of offence. No independent evidence is available to corroborate the version of complainant. Moreover the chemical examiner’s report did not corroborate the version of the complainant. Per chemical examiner’s report human sperm not detected in the above mentioned articles which were sent to him, even a final medical certificate issued by Medical Officer, Taluka Hospital, Tando Bago opined as under:-

                         “Same as in provisional certificate however no positive evidence of cross match of semen.”

9.                     Prior to this FIR another FIR bearing crime No.49 of 2003 was registered by one Bahadur father of the complainant/victim Vikiyo for offence under section 337, 511 & 18 Zina Ordinance against one Porho Jamali and others in which it was alleged that the accused were attempting to commit sodomy with his son Vikiyo but after investigation same FIR was disposed of under “Cancel” Class. Interestingly the same Vikiyo has registered this FIR with the same allegations against the present applicants and after investigation police came to the conclusion that so far the allegation of sodomy is concerned, same is false due to lack of required evidence. One of the witnesses namely Nabi Bakhsh did not support the prosecution case so far the allegation of sodomy is concerned but he has stated that a quarrel had taken place between the accused and complainant.

10.                   Apart from the above the names of two co-accused Hoshiyar and Deedar have been placed in Column-II of the challan which prima facie show that police did not believe the version of the complainant.

11.                   For the foregoing reasons, I am of the considered view that there are no reasonable grounds to believe the applicants are guilty of offence punishable for death, imprisonment for life or ten years but there are many circumstances which create doubt about the truthfulness of the prosecution version, therefore, case of the applicants falls within the ambit of further inquiry I, therefore, admit the applicants on bail subject to furnishing their solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousands only) each and PR Bond in the like amount, to the satisfaction of trial Court.

12.                   The above observation will not prejudice the case of either side being tentative in nature.

                                                                                                                        JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABDULLAH CHANNA.