IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-600 of
2020
Applicant : Abdul Khalique s/o Khursheed Ahmed,
through
Mr.
Achar Khan Gabol, advocate
Respondent : The
State, through Mr.
Aftab Ahmed
Shar
Addl. P.G.
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Date of hearing : 23.08.2021
Date of order : 23.08.2021
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O R D E R
ZAFAR AHMED RAJPUT, J.- Applicant/accused Abdul Khalique (shown
in F.I.R. as Khaliq) being abortive to get the concession of pre-arrest
bail from the Court of Additional
Sessions Judge-IV, Khairpur in criminal bail application No. 2001 of 2020 vide
order dated 13.10.2020, through this application seeks the same concession from
this Court in Crime/FIR No.65 of 2020, registered under section 376, P.P.C. at
Police Station, Hingorja. The applicant was admitted to interim pre-arrest bail
by this Court vide order, dated 19.10.2020.
2. As per FIR, the allegation against the
applicant is that he, on 12.09.2020 at about 09:00 p.m., committed rape on
complainant’s daughter, namely, Mst. Fatima against her will, in the Cattel pen
of one Qabil Mangnejo.
3. Learned Counsel for applicant has contended
that the applicant is innocent and has falsely been implicated in this case;
that there is delay of two days in lodging of FIR without any plausible
explanation; that the parties already have inimical terms and in this regard
the brother of applicant had lodged an FIR being No.123/2012 at Police Station,
Hingorja, under sections 382, 337A(i), F(i), 18, 149, 506/2 P.P.C. against the
sons-in-law of the complainant, namely, Ghulam Mustafa and Asadullah; that
there is no eye witness of the alleged incident and applicant has been involved
in this case only on the sole statement of victim Fatima; that the alleged
incident is stated to have been taken place in the cattle pan of Qabil Mangnejo
but the I.O. did not record his statement; that DNA report about the swab and
human sperm on cloth of the alleged victim did not match with the profile of
the applicant; even as per Provisional Medical Certificate no marks of violence
on the body of alleged victim was found; that only detection of human sperm on
the cloths of victim does not connect the applicant with the alleged offence
especially in the absence of positive DNA report and, therefore, it is yet to
be determined at the trial if the applicant has committed the alleged offence;
hence, the case of the applicant squarely falls within the ambit of further
inquiry. In support of his contentions, the learned counsel has relied upon
case of Muhammad Tanvir v. The State and
others (2017 SCMR 366) and Umar Nasir v. The State and
another (2018
P. Crl. LJ Note 133).
4. Per contra, learned Addl. P.G. while
opposing instant bail application has maintained that the applicant was seen by
the complainant and her son-in-law coming out from the Bara of Qabil Sahito
after committing alleged rape on her daughter; that the victim in her statement
recorded under sections 161 and 164, Cr.P.C has fully connected the applicant
with the commission of alleged offence; that the report of chemical examiner
supports the prosecution case that the alleged victim was subjected to rape; that
there is no direct enmity of applicant with the complainant party; that sufficient
material is available with the prosecution to connect the applicant with the
commission of alleged offence.
5. I have heard learned counsel for applicant
as well as Addl. P.G and have perused the material available on record with
their assistance.
6. The alleged incident is stated to have taken place on
12.09.2020 at about 2100 hours, while FIR was lodged on 14.09.2020 at 2200 hours, with un-explained delay
of two days; hence, the presumption of
consultation and deliberation, so also malice and ulterior motive, for lodging
of the FIR cannot be ruled out. It
appears that there is no eye-witness of the incident. The alleged act is stated
to have been committed in the cattle pen of one Qabil Mangnejo, who has
admittedly been not examined by the investigating officer. It is strange to
note that at the relevant time neither said owner nor his any servant was
present in the cattle pen. Though the victim Kaneez Fatima in her statement recorded
under section 164, Cr.P.C. has implicated the applicant with commission of
alleged offence but the said statement was recoded on 08.10.2020 after 25 days
of the alleged incident, without justifying such delay, which renders its
credibility doubtful. It further appears that as per provisional MLC, the
victim, aged about 15 years, appeared before the Woman Medical Officer for her
medical examination after 16 hours of the alleged incident and WMO noted no
evidence of external violence on the body of the victim and abrasion or bruise
mark on thighs and external genitalia. It also appears that the WMO secured one
vulva and perineum cotton swab, one low vaginal cotton swab, one high vaginal
(posterior fornix) cotton swab and shirt and shalwar of the victim, which on
microscopic examination found containing human sperm as per report of Chemical
Examiner, yet as per DNA report, the applicant
was not contributor of semen stain/sperm fractions identified on vaginal swab
samples and cloths of victim. In these circumstances, as observed by the Apex
Court in the case of Muhammad Tanvir (supra) the
case against the applicant calls for further inquiry within the ambit of
Sub-Section (2) of section 497, Cr.P.C. I, therefore, confirm interim pre-arrest
bail granted to applicant vide order, dated 19.10.2020 on same terms and
conditions.
7. Needless
to mention here that observation made by this Court hereinabove are tentative
in nature and shall not influence the trial Court by deciding the case on
merits and in case the applicant misuses the concession of bail in any manner
whatsoever, the trial Court shall be at liberty to cancel his bail after
serving requisite notice.
Criminal Bail Application stands
disposed of.
J
U D G E
Ihsan/*