IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 502 of 2023.
Applicant: Abdul Qadeer alias Qadeer, through Mr. Shahbaz Ali Brohi, Advocate.
Complainant: Hakimzadi, through Mr. Ghulam Akbar Soomro, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 11.03.2024.
Date of order: 11.03.2024.
Date of reasons: 12.03.2024.
ORDER
Muhammad Saleem Jessar, J- Through captioned bail application, applicant Abdul Qadeer alias Qadeer son of Ghulam Nabi Sethar has sought for pre arrest bail in the case emanating from F.I.R No. 42 of 2023 registered at P.S Khanpur for offence punishable under Section 375-A, 496-A and 34 P.P.C; after his similar plea was declined by learned Additional Sessions Judge-III, Shikarpur, by dismissing his application vide Order dated 26.08.2023.
2. Brief facts of the prosecution case have already been mentioned in the impugned order in para 2, which are reproduced hereunder:
“The succinct facts of prosecution case are that on 18.06.2023 at about 1400 hours, complainant Mst. Hakimzadi had lodged F.I.R at P.S Khanpur, alleging therein that on 09.06.2023, complainant was present in her house and at about 8.00 p.m., accused Shaman Ali came to her and on the pretext of marriage taken away to her at his abandoned house, where she saw and identified accused to be Qadeer, Mehboob were already present. It is further alleged that accused Shaman, Mehboob and Qadeer committed “Zina” with her, she raised cries and on her cries her father Abdul Jabbar and cousin Dil Murad came there, who bring her at P.S, wherefrom she obtained letter and went to RHC Khanpur and after her check-up/ examination, she appeared before P.S Khanpur, where lodged instant F.I.R to the above effect.”
3. Heard learned counsel for the applicant, learned Advocate for complainant as well as learned Addl. P.G. appearing for the State and perused the material available on record.
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 nine days and that medical evidence does not support the ocular version. He submitted that according to provisional medical certificate of the victim there are no any marks of any violence upon her body and according to final medical certificate, which is supported by findings of the DNA Test, the blood sample of accused was not matched with victim and the vaginal swab samples of victim did not contain any male DNA/ semen stain/ sperm fraction. Lastly, learned counsel submitted that, challan of the case has been filed and applicant has joined the trial and regularly attending the trial Court. He prayed for confirmation of interim pre arrest bail in favor of the applicant.
5. Conversely, learned Addl. P.G. assisted by learned Advocate for complainant opposed the grant of bail on the grounds that the applicant has been nominated in F.I.R with specific role of committing “Zina” with victim; 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 appears from the record that the alleged incident is said to have taken place on 09.06.2023, whereas it was reported to the police on 18.06.2023 with the delay of about nine days. It is well settled law that the delay is falling within the ambit of deliberation and afterthought, therefore, it is always considered to be fatal for the prosecution case. Per case of prosecution, it is alleged against applicant/ accused that, he committed “Zina” with victim (complainant); however the provisional medical certificate of victim reflects no any mark of violence upon any part of her body. The provisional medical certificate of victim reads as under:
Internal Examination:
No tear, no abrasion, no swelling, no bleed.
Valva: No bleeding, no redness, no swelling, no touch to pain.
Vagina: No tear, no laceration, no swelling, no touch to pain, no bleeding.
Moreover, the DNA report as well as final medical certified issued by the medico-legal officer also do not support the ocular version. The MLO Dr. Afshan Memon vide final medical certificate dated 04.10.2023 has opined to the effect that “in the light of DNA report, no semen stain are present in the vaginal swabs of the victim.” The DNA report affirms that the blood sample of accused was not matched with victim and the vaginal swab samples of victim did not contain any male DNA/ semen stain/ sperm fraction. 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 already jointed the trial; the investigation of this case has been finalized; charge has been framed and case is fixed for recording evidence, as such no fruitful purpose would be achieved, if applicant is declined pre arrest bail.
7. Therefore, keeping in view the facts and circumstances of the case prima facie, the case against 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, interim pre arrest bail already granted to applicant was confirmed on same terms and conditions vide short order dated 11.3.2024, and these are reasons for the same.
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