ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.673 of 2015

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ORDER WITH SIGNATURE OF JUDGE

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1. For orders on office objections

2. For hearing.

Dated 24.08.2015.

Mr. Mushtaq Ahmed advocate for the applicant Adil.

Mr. Abrar Ali Khichi APG Sindh.

Mr. Bashir A. Mirani advocate for the complainant.

Naimatullah Phulpoto J.- Applicant/accused Adil S/o Abdullah has applied for post arrest bail in Crime No.786 of 2013 registered under Sections 376/109/34 PPC at P.S. Shahra-e-Faisal, Karachi.

2. Brief facts of the prosecution case as disclosed in the FIR are that Hina Bibi daughter of Mohammad Hafeez aged about 16 years lodged the FIR on 29.11.2013 alleging therein that she resides in the house of her Aunty at House No.12, Street No.C-7, Area Qayyoom Abad Korangi, Karachi. Prior to this she was residing in the House No.258, Block-12, Gulistan-e-Johar, Karachi with her grandmother namely Hajra. Victim Hina in her FIR stated that when she was aged about 2/3 years, her father expired and after the death of her father, her mother contracted second marriage and complainant/victim came in the house of her grandmother and was living there and other family members were also residing there. It is further stated in the FIR that abut six months prior to the lodging of the FIR, her real maternal uncle namely Abid (present accused) by issuing her threats committed zina with her and she remained calm and accused continued the act of zina with her. Resultantly, she became pregnant; complainant informed this fact to her grandmother Mst. Hajra and she asked the complainant to remain calm. On 21.11.2013, all the family members had gone somewhere out of the house and the complainant finding good opportunity came in Rikshaw to the house of Mst. Shahida Bano her Aunty at Qayyum Abad and narrated her the entire story and she accompanied with her aunt Mst. Shahida, went to the police station and lodged the FIR against the applicant/accused Adil son of Abdullah and Mst. Hajra. FIR was recorded vide Crime No.786 of 2013 on 19.11.2013 for offences under Sections 376/109/34 PPC. After registration of the FIR victim Hinna was medically examined and statements of PWs were recorded under Section 161 Cr.P.C. During investigation the applicant/accused Adil was arrested. On the conclusion of the investigation challan was submitted. Mst. Hajira was shown as absconder. Case was sent up to the Court of Sessions and bail application was moved on behalf of the applicant/accused Adil before the learned IVth Additional Sessions Judge, Karachi East same was rejected by him vide order dated 03.03.2014. Applicant Adil approached this Court for same relief and his first bail application No.443 of 2014 was dismissed by this Court vide order dated 11.09.2014 as not pressed with directions to the trial Court to decide the case within a period of three months. Applicant/accused repeated bail application before trial court, the same was rejected vide order dated 29.5.2015. This is second bail application which is repeated mainly on the ground that after dismissal of the first bail application and issuance of the directions the trial Court has recorded evidence of only two witnesses i.e. complainant Hina and of Dr. WMO and case has not been concluded.

3. Learned counsel for the applicant Adil argued that there is delay of six months in lodging the FIR for which no plausible explanation has been furnished. He argued that no marks of violation were found on the body of the victim. He also argued that no DNA test had been produced before the trial Court. It is also argued that despite directions trial has not been concluded by trial Court; Lastly it is argued that there is dispute between the accused Adil and the complainant over the money and it is stated that case against the applicant/accused requires further inquiry. In support of the contentions reliance is placed upon the following case law:-

1. HIDAYATULLAH VS. THE STATE (2007 YLR 1311)

2. JADEED GUL VS. THE STATE (1998 SCMR 1124)

4. Mr. Abrar Ali Kichi learned APG assisted by Mr. Bashir A. Mirani advocate for the complainant argued that evidence of the victim/complainant Hina has been recorded before the trial Court in which accused Adil has been implicated and evidence of victim is fully corroborated by the medical evidence. He has also argued that delay in lodging the FIR has been fully explained. He has seriously opposed the bail application.

5. I have carefully heard the arguments advanced by the learned counsel for the parties and perused the relevant record.

6. It appears that evidence of the victim girl has been recorded by the trial court in which she has fully implicated the applicant/accused Adil and stated that applicant/accused Adil had committed rape with her and she became pregnant and she has born a male child. Dr. Sadia WMO has also been examined by the trial Court. The learned APG referred to the medical certificate dated 4^th December, 2013 which reflects that the victim girl Hina was medically examined and according to the medical report she was found pregnant. Trial is in progress and evidence of the victim girl and WMO have been recorded. There is no fresh material in subsequent bail application. Offence is of serious nature. Other contentions raised by the learned counsel for the applicant/accused require deeper appreciation of evidence, which is not permissible at bail stage. Trial Court has made possible efforts to conclude trial within specified period. Prima facie, there appear reasonable grounds for believing that applicant/accused has committed the alleged offence which is punishable for death or imprisonment of either description for a term which shall not be less than ten years and maximum 25 years and shall also be liable to fine. Since, frima facie, sufficient material/evidence has been collected against the applicant/accused Adil to connect him in the case. Therefore, no case for grant of bail to the applicant/accused is made out.

7. In view of the above, the bail application is dismissed. However, the trial Court is directed to conclude the trial expeditiously.

Needless to mention that observations made in the above order are tentative in nature and the trial Court shall not be influenced by the same while deciding the case on merits.

J U D G E

Frq/