IN THE COURT OF CIVIL/FAMILY JUDGE AND J

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS

Criminal Bail Application No. S-99 of 2024

Applicants/ accused: 1. Akber s/o Muhammad Soomar.

2. Liaquat Ali s/o Muhammad Jumman

through Mr. Om Parkash H. Karmani advocate.

Complainant: Mst. Noor Jahan

Through Mr. Mehboob Ali Kapri advocate.

The State : Through Mr. Dhani Bakhsh Mari,

Assistant Prosecutor General, Sindh

Date of hearing: 24.07.2024

Date of order: 24.07.2024

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ORDER

KHADIM HUSSAIN SOOMRO. J- By means of instant Criminal Bail application, the applicants/ accused have sought post-arrest bail subsequent dismissal of their earlier post-arrest bail application No. 13/ 2024, arising out of Crime No. 06/ 2024 of P.S. Women Mirpurkhas, registered under sections 364-A, 375-A P.P.C. by learned Additional Sessions Judge-II/G.B.V./Anti-Rape Court, Mirpurkhas, vide order dated 15-05-2024.

2. Brief facts of the prosecution case as per F.I.R. lodged by complainant Mst. Noor Jahan alleged on March 13, 2024, at 1800 hours that, her daughter Gulnaz, approximately 14 years old, informed her via cellphone that on the same day at 0230 hours, while she was sleeping at her maternal grandmother's house, accused Liaquat forcibly awakened her, covered her mouth, and using a pistol, forcibly removed her from the house where watchman Akber was present. It is alleged that accused Liaquat then committed Zina (sexual intercourse) with her against her will. Upon hearing her cries, her maternal uncle Ghulam Sarwar intervened and rescued her, after which the accused persons fled the scene. This application for bail follows these allegations

3. The learned counsel for the applicants/accused was heard on July 3, 2024, during which he primarily argued that there is an unexplained delay of 18 hours in registering the First Information Report (F.I.R.), and no plausible explanation has been provided for this delay. He further contended that there exists a discrepancy between the ocular and the medical evidence. Additionally, he highlighted a contradiction between the statements of the victim recorded under Section 161 of the Criminal Procedure Code (Cr.P.C.) and those recorded under Section 164 of the Cr.P.C. Furthermore, he emphasized the absence of independent witnesses to corroborate the complainant's account. Today, the matter is fixed for arguments of learned A.P.G and learned counsel for the complainant.

4. The learned counsel for the complainant has submitted that the applicants/accused are named and assigned specific roles in the First Information Report (F.I.R.). He further points out that statements under Section 161 of the Criminal Procedure Code (Cr.P.C) by eyewitness Ghulam Sarwar and under Section 164 Cr.P.C by the victim were recorded during the investigation, wherein they have directly implicated the present applicants/accused in the commission of the alleged offence. Additionally, he argues that the alleged offence falls within the prohibitory clause of Section 497 Cr.P.C. Finally, he prayed for the dismissal of the current bail application

5. The learned Additional Prosecutor General (A.P.G.) also contended that under Section 375-A of the Pakistan Penal Code (P.P.C.), every person involved in the offence with a common intention is liable for punishment. He further asserts that the final medical report of the victim confirms multiple sexual intercourse have been committed. In support of his arguments, the learned A.P.G. has cited case law references, specifically referring to 2016 P Cr. L J 1888 and 2011 YLR 17444.

6. I have heard counsel for both parties and perused the material available on record.

7. Applicant/ accused Liaquat is nominated in the F.I.R. with the specific role of committing sexual intercourse with the victim. In contrast, the applicant accused Akber is implicated with a specific role, indicating that he was present at the scene of the alleged incident as a facilitator of the principal accused. In the present case, there exists no ill will or animosity between the parties that could lead to false implication of the current applicants/accused. In our society, it is inconceivable that anyone would jeopardize their own honour or that of their family over trivial matters and implicate an individual in a rape case.

8. The victim's statement under Section 164 of the Criminal Procedure Code (Cr.P.C.) and the eyewitness statement of Ghulam Sarwar under Section 161 of the Cr.P.C. fully implicate the current applicants/accused in the commission of the present offences. In rape cases, the victim's statement is sufficient to connect the accused with the offence as it is a primary piece of evidence. It serves as a firsthand account of the events from the perspective of the victim. Primafacie, the applicant's counsel, failed to point out any malafide on the part of the complainant or victim. . The reliance is placed on Mushtaque Ahmed and others vs. The State (2003 SCMR 473.

9. The medical evidence supports the ocular version of the victim and eye witness. According to the medical report, various sexual intercourse has been committed with the victim.

10. Reverting to the case of co-accused Akber, who was allegedly the facilitator of the principal accused. For the sake of convenience, section 375-A P.P.C. is reproduced as under:

[375A. Gang rape.— Where a person is raped by one or more persons constituting a group or acting in furtherance of a common intention. each of those persons shall be guilty of the offence of gang rape and shall be punished with death or for imprisonment for the remainder period of natural life or imprisonment for life and fine.]

11. When an individual is subjected to rape by one or more persons acting as a group or in pursuit of a common intention, each participant shall be convicted of the crime of gang rape. The punishment for this offence includes death, life imprisonment, or imprisonment for life, along with a fine. The case of co-accused also does fall within the prohibitory clause of section 497 Cr.P.C.

12. In view of the above, the instant bail application merits no consideration, and the same is hereby dismissed.

13. Needless to mention here, the observations made in this order are tentative in nature and will not influence the case's merits.

JUDGE

*Saleem*