Cr.B.A.No.S-382 of 2008

For hearing

11.2.2009

Mr.Ghulam Mustafa Sahito along with applicants.

Mr.Liaqat Ali Shar, Additional Advocate General for the State.

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Complainant Syed Sikandar Ali Shah lodged F.I.R at Police Station, Abdul Rahman Unnar on 1.4.2008 which reads as under:

“Complaint is that my brother Syed Samar Ali Shah aged about 14/15 years is studying in VIIIth Class. On 29.3.2008 at day time Shah Muhammad son of Ali Bakhsh Junejo resident of village Shah Muhammad Junejo called my brother Samar Ali Shah in his village through phone and asked him that he is sending Javed Junejo and he should come with him. At about 10-00 a.m. Javed son of Wali Muhammad Junejo came on motorcycle with whom my brother Samar Ali Shah and maternal uncle Ghulam Mustafa Shah son of Syed Din Muhammad Shah proceeded together. At about 1-00 p.m. my brother Samar Ali Shah and maternal uncle Ghulam Mustafa Shah came at home and told that Javed Junejo took them towards banana garden of Rab Nawaz Dharejo where accused namely Waheed son of Muhammad Siddique Junejo resident of village Shah Muhammad Junejo armed with repeater, Akhtiar son of Muhammad Akan resident of village Shah Muhammad Junejo and Rashid son of Hazar Khan Junejo resident of village Dost Muhammad Junejo presently residing at Sadarji having Sundhas of palm trees were standing there who with show of weapons controlled upon us tied our arms etc. and robbed mobile Nokia 1200 and cash Rs.3000/- and at 1230 hours Rashid Junejo embraced down Syed Samar Ali Shah and then all the accused turn by turn committed sodomy with Syed Samar Ali Shah. Hearing these facts I waited for my father Syed Abdullah Shah who had gone out and after getting letter from police station got conducted medical check up and treatment of Syed Samar Ali Shah from RHC Hospital, Pir Goth. Today my father came at home to whom I narrated the above facts who suggested to lodge report at Police Station hence I along with my brother Samar Ali Shah have come for registration of the F.I.R that accused Shah Muhammad Junejo in collusion with other accused mala fidely called my brother Samar Ali Shah and other accused committed unnatural offence with my brother forcibly and have robbed from him the below detailed property, I am complainant, seek justice”

Learned counsel for the applicant submits that one of the accused Akhtiar has been granted bail by the trial court, therefore, applying the rule of consistency all the three applicants may be granted bail and that there is a delay of three days in lodging the F.I.R without any plausible explanation. That the names of the applicants are mentioned in column No.2. That the applicants are innocent and if arrested will be humiliated in the public. He further submits that the case does not fall within the prohibitory clause of section 497, Cr.P.C and that there is no evidence except allegation of the victim.

On the other hand learned Additional Advocate General has strongly opposed the bail application by arguing that the non-cognizable report was lodged on the very day i.e 29.3.2008 and thereafter medical examination was conducted and F.I.R was lodged on 1.4.2008 and the Medical report is positive. He further submits that trial court has wrongly granted bail to co-accused Akhtiar by giving him benefit of doubt. He should not have been granted bail in view of straightaway allegation of the victim, therefore, notice may be issued to him. That the applicants are not entitled to any leniency nor there will be any humiliation for them as they themselves have ignored the dignity by involving themselves in such type of offence. He further submits that the police has wrongly placed the names of the applicants in column No.2 and that has only been done keeping in view the evidence of defence witnesses.

After hearing the learned counsel it appears that there was NC report datyed 29.3.2008 while F.I.R is dated 1.4.2008. there is direct and serious alalegation against the applicants by victim himself who has specifically named the accused persons. The observation of the trial court that there is no witness has no force as in such type of cases there will be seldom attendance of a witness as no one will be foolish enough to provide an opportunity to the independent witness to look on the act. The trial court has granted bail to one of the accused Akhtiar by giving him benefit of doubt which has not only given after considering the evidence and the doubt is only pointed out when there is some comparison in the evidence and the complaint. This is bail before arrest application and deeper appreciation of evidence cannot be taken in hand while available material involves the applicants. In such a situation, this bail application is dismissed and show-cause notice be issued to accused Akhtiar as to why his bail granted by the trial court vide order dated 29.5.2008 should not be cancelled.

Adjourned to 24.3.2009.

JUDGE

N.M.