IN THE COURT OF CIVIL/FAMILY JUDGE AND J

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS

Criminal Bail Application No. S-22 of 2024

Applicant/ accused: Muhammad Haroon s/o Safar Ali Rajput

through Mr. Mir Pervez Akhter Talpur advocate.

Complainant: Muhammad Asad

Through Mr. Afzal Kareem Virk advocate.

The State : Through Mr. Dhani Bakhsh Mari,

Assistant Prosecutor General, Sindh

Date of hearing: 22.07.2024

Date of short order: 22.07.2024

Date of reason order: 25.07.2024

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ORDER

KHADIM HUSSAIN SOOMRO. J- By means of instant Criminal Bail application, the applicant/ accused has sought post-arrest bail after dismissal of his post-arrest bail application No. 26/ 2024, arising out of Crime No. 34/ 2023 of P.S. Women Mirpurkhas, registered under sections 496-A, 375-A, 506(i), 355 PPC by learned Additional Sessions Judge-II/G.B.V./Anti-Rape Court, Mirpurkhas, vide order dated 11-01-2024.

2. Brief facts of the prosecution case are that the complainant, Muhammad Asad, lodged his F.I.R. on 04-12-2023 at 1630 hours against the applicant/ accused, Muhammad Haroon, stating therein that with facilitation of co-accused Mst. Nimra, the headmistress of a private school, on 24-11-2022 at 0900 hours, took victim Jaweria, the sister of the complainant, in her car to the room of Grid Station Tando Jan Muhammad, where the applicant accused committed rape with her and recorded her video on cell phone. On 17-11-2022, he again committed Zina with the victim at the same place after blackmailing her while co-accused Nimra and security guard Waseem facilitated the applicant/accused in the commission of rape; hence this bail application.

3. It is pertinent to mention here that arguments of learned counsel for the applicant/ accused were heard on 08-07-2024 wherein he mainly contended that F.I.R. is delayed about one year and 10 days, for which no plausible explanation has been given; that there is no medical certificate available on record which corroborate the version of the victim; that according to the prosecution, the applicant is being accused of committing rape and recording a video of the incident; however police found that recovered cell phone was not registered in his name; that there is glaring contradictions in the F.I.R. and 164 Cr.P.C statement of the victim; that there is no independent witness who corroborate the complainant's version; that the co-accused, who were the main facilitator of the accused i.e. Nimra and Waseem, were granted pre arrest bail by the learned trial court; that during investigation I.O neither collected cell phone of the victim or those to her parents, which could establish communication between accused and the victim; that according to the opinion of the Special Medical Board, the applicant/accused is suffering from "MYSTHENIA GRAVIS" and requires treatment that cannot be administered within a jail. The board has advised surgery, which cannot be performed within the confines of a prison. Today, the matter is fixed for arguments of learned A.P.G and learned counsel for the complainant.

4. Counsel for the complainant has submitted that the applicant/ accused is nominated in the F.I.R. with the specific role of committing Zina with the victim; that there is no conflict between the F.I.R. and 164 Cr.P.C statement of the victim, however, in F.I.R. there is only precise information of a cognizable offence whereas in 164 Cr. P.C statement that the victim has given details of every event; that during the course of the investigation, the cell phone was recovered from the house of the applicant/accused on his pointation, and the same was sent to the Expert, who has reported that video is not edited one; that the medical evidence supports the ocular version of the victim; that there is no any previous enmity between parties; that role of co-accused Waseem and Nimra is completely distinguished and different from that of present applicant/ accused hence the rule of consistency is not applicable. Lastly, he prayed for the dismissal of the instant bail application. In support of his contentions, he has relied upon case laws, i.e. 2020 M.L.D. 2075, 2008 P Cr. L J 227, 1994 P Cr. L J 1040 and 2021 P Cr. L J 195.

5. Learned A.P.G adopts the arguments as advanced by counsel for the complainant. He also relied upon case law, i.e. 2023 YLR 1027, 2016 P Cr. L J 1888, 2011 YLR 1744, 2000 SCMR 150 and two unreported case laws.

6. In rebuttal, counsel for the applicant/ accused submits that the SIM of the cell phone was registered in the name of one Naveed, who has not been joined as accused during the course of the investigation; that I.O has also failed to collect the cell phone of the victim in order to establish that there was communication between the applicant/accused and victim, which makes the case of prosecution highly doubtful and one of further inquiry. He lastly prayed for a grant of bail.

7. I have heard counsel for both parties and perused the material available on record.

8. No doubt F.I.R. is delayed about four months, but the victim has clarified in her statement under Section 164 of the Criminal Procedure Code that due to severe fear induced by the applicant/accused, she shifted from Mirpurkhas to the Province of Punjab, thereby explaining the delay. In her statement, the victim has fully implicated the present applicant/ accused for the commission of the present offence. In rape cases, the victim's statement is sufficient to connect the accused with the offence as it is a primary piece of evidence, which serves as a first-hand account of the event from the prospects of the victim. The applicant's counsel failed to point out any malafide on the part of the complainant or victim to implicate him falsely in this case. In this respect, reliance is placed on the case of Mushtaq Ahmed and others v. The State (2003 S C M R 473).

9. During the course of the investigation, the victim was medically examined. Although the victim is unmarried, according to the medical report, the hymen of the victim was absent. As far as the absence of marks of violence on the private part of the victim is concerned, it is quite a deeper appreciation of evidence which is not warranted at the bail stage.

10. The I.O. recovered a cell phone containing the photograph and the videos of the victim from the accused applicant's house on his piontation. The mobile phone was sent to a forensic expert for examination, who reported that no editing was found in the video. The counsel emphasized that the SIM of the recovered mobile phone was not registered in the name of the applicant/ accused but in the name of one Naveed, who is the son of the applicant.

11. Another aspect of the case is that the applicant is allegedly suffering from a disease which is called "MYSTHENIA" (UZWAT KI KAMZORI). To ascertain the severity of the applicant's illness and its impact on his life, a Special Medical Board was convened. As per the findings of the Special Medical Board, it was determined that the applicant's incarceration does not pose a threat to his life. The relevant paragraph of the report of the Special Medical Board is reproduced as under:-

After discussion, the Chairman & Members of Special Medical Board are of unanimous opinion that, "Accused/U.T.P. Muhammad Haroon s/o Safdar Khan Rajput Patient's stay at jail is not detrimental to his life"

12. The punishment for the alleged offence includes death, life imprisonment, or imprisonment for life, along with a fine. The case also falls within the prohibitory clause of section 497 Cr.P.C. For the sake of convenience, section 375-A P.P.C. is reproduced as under:

[375A. Gang rape.— Where a person is raped by one or more persons constituting a group or acting in furtherance of a common intention. each of those persons shall be guilty of the offence of gang rape and shall be punished with death or for imprisonment for the remainder period of natural life or imprisonment for life and fine.]

13. The counsel for the applicant argued that since co-accused Nimra and Waseem were granted pre-arrest bail, the applicant is similarly entitled to such relief. However, it is important to note that the roles of the co-accused differ significantly from that of the principal accused. The co-accused were involved as facilitators to the main accused, whereas the applicant had a distinct and principal role in the case.

14. Another formidable and unfortunate aspect of this case is that nod videos of the victim were uploaded on social media from the account of one lady, Parveen, who could not be traced during the investigation. The widespread distribution of such a video has the potential to intensify this stigma, resulting in feelings of social exclusion, scapegoating, and rejection from acquaintances. Consequences may affect the victim in both their personal and professional lives. Furthermore, victims may encounter obstacles in their pursuit of school, job, or other possibilities as a result of the stigmatized image or psychological distress caused by the incident.

15. In view of the above, the instant bail application merits no consideration, and the same is hereby dismissed.

16. Needless to mention here, the observations made in this order are tentative in nature and will not influence the case's merits.

JUDGE

*Saleem*