IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
1stCr. Bail Application No. S-424of 2020
Through Mr. Shahbaz Ali Brohi, advocate
Complainant: Mir Ahmed Pahore,
Through Mr. Safdar Ali Ghouri, advocate
State: Through Mr. Muhammad Noonari, D.P.G.
Date of hearing: 08-02-2021
Date of order: 08-02-2021
O R D E R
Zulfiqar Ali Sangi, J.- Through instant criminal bail application, applicantWajidPahore, seeks post arrest bail in Crime No.14/2020, registered at P.S.Raheemabad,for offence under sections 377, 377-B, 34 P.P.C.Earlier his bail was rejected by learnedSessions Judge, Shikarpur, vide order dated 11.08.2020.
2. Facts of the case as per FIR lodged by complainant Mir Ahmed Pahore on 25.02.2020 at 1930 hours are that on the same day he along with his nephew Khamiso and Muhammad Yakoob were present in their village. His grant son, namely, Abdul Salam aged about 6/7 years was playing. At 05-00 p.m they heard cries coming from nearby jungle. They went there and saw accused Wajidwas committing zina with his grandson Abdul Salam while accused Khadim was holding the victim, who on seeing complainant party left the victim, who was bleeding and escaped. Thereafter the inured was brought at P.S. from where he was referred to hospital and then the complainant lodged the above F.I.R at Police Station.
3. Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in this case by the complainant with malafide intention; that there is enmity between complainant and accused over cutting of trees; prior to this incident, father of victim had also lodged another F.I.R bearing No.89/2005 and now in this case applicant/accused along with his real brother has been involved; that in the DNA test swabs of victim and accused have not matched thus the case falls within purview of further inquiry. He has also added that co-accused Khadim has been granted bail by the learned trial court vide order dated 22.04.2020. He further submits that applicant is no more required for further investigation, hence no useful purpose will be achieved by detaining him in jail. In support of his contentions, he has placed his reliance on the case of ABDUL GHAFFAR versus The STATE and others(2016 SCMR 1523). He prays for grant of post arrest bail to the applicant/accused.
4. Conversely learned counsel for the complainant has vehemently opposed the grant of bail.He submits that there was no malafide on the part of the complainant; the applicant/accused had been seen committing sodomy with minor boy aged about 14 years; that DNA report is managed; that the name of applicant/accused transpired in the F.I.R with specific role; that the accused is involved in heinous offence against society thus he did not deserve any relief; that the punishment for section 377-B is not less than 14 years and the same may be extended upto to 20 years and with fine not less than one million as such offence falls within the prohibitory clause of Section 497 Cr.P.C. In support of his contentions, he has placed his reliance on the case of AMAN ULLAH versus The STATE(PLD 2009 Supreme Court 542). He has prayed for rejection of bail.
5. Learned D.P.G. has conceded the arguments of learned counsel for the complainant.
6. I have heard the learned counsel for the parties and perused the material available on the record with their able assistance.
7. Admittedly the name of the applicant/accused transpired in the F.I.R with specific role as the applicant/accused Wajid with the help of his brother Khadim was found committing sodomy with minor boy Abdul Salam aged about 14 years, who was found bleeding from rectum. The witnesses have supported the case and medical evidence supports the prosecution version so also circumstantial evidence collected in shape of blood stained clothes of victim. The F.I.R has been lodged promptly. The P.Ws Khamiso Khan and Muhammad Yaqoobin their 161 Cr.P.C statements have fully supported the version of complainant and the medical evidence also corroborates the version of complainant. I.O. has collected the blood stained clothes, who also prepared mashirnama of blood stained clothes of victim and clothes of accused, mashirnama of place of vardhat, mashirnama of arrest. Victim has also been admitted in hospital for checkup and during the checkup doctor found that the blood was oozing and victim feeling pain, tear was present over anal examination, anus was partly closed.
8. The bail application has been moved solely on the ground that DNA test report not matched. In this respect, the Honourable Supreme Court in the case of AmanUllah versus The State reported as (PLD 2009 Supreme Court 542), did not rely upon DNA report and observed that such like reports were only corroborative in nature and were required only when ocular testimony was of a doubtful character. It was further observed that no reason could be offered as to why the prosecutrix who had admitted be subject to sexual inter course would have spared the actual offender and should have instead substituted the accused for him. It was further observed that prima facie and for the purpose of bail petition, it could not be said that the testimony offered by the prosecutrix could admit of any doubt petition for leave to appeal was refused and bail was declined by the Supreme Court in the cited case. The offence for which applicant is allegedly involved is a heinous offence against society and is increasing day by day in our country. The punishment for section 377-B P.P.C is not less than 14 years and the same may be extended upto to 20 years and with fine not less than one million as such offence falls within the prohibitory clause of Section 497 Cr.P.C.
9. In these circumstances; I am of the considered view that the applicant has not made out his case for grant of post arrest bail. Accordingly, instant criminal bail application stands dismissed.
10. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.
J U D G E