IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.448 of
2025
|
DATE |
ORDER WITH
SIGNATUREs OF JUDGEs |
1.
For orders on M.A. No.3105/2025
2. For
hearing of bail application
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14.03.2025
M/s Habib Ahmed & Mr. Ali Afsar
Jan, advocates for applicant
Ms. Rubina Qadir, D.P.G.
Mr. Riaz Ahmed Bhatti, advocate for
complainant
PI/IO Mehboob Illahi of PS SSHIA,
Karachi
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SHAMSUDDIN ABBASI,
J.—Applicant/accused Abdul
Rafey son of Imran Iqbal seeks post arrest bail in FIR No.57/2025, registered
at P.S. Site Superhighway Industrial Area, Karachi for offence under sections
376, PPC, after rejection of his bail plea by learned trial Court vide order
dated 15.02.2025.
2. Brief
facts of the case are that minor daughter of complainant, namely, Asma, aged
about 13/14 years, was subjected to rape, resulting in an unwanted pregnancy of
about 4 months, which later on ended into a miscarriage, medical examination
confirmed sexual assault and forensic tests as well as DNA analysis were
conducted.
3. Learned
counsel for applicant submits that applicant/accused is innocent and he has
been falsely implicated in this case due to mala fide intentions and ulterior
motives; that this is a case of two versions, on the one hand complainant and
alleged victim have implicated co-accused Muhammad Aslam, who is husband of
complainant and father of alleged victim and on the other hand, in statement
under section 164, Cr.PC the alleged victim deviated from her earlier version
and has implicated the present accused for committing alleged offence; that DNA
report is negative; that bail has been granted to co-accused Muhammad Aslam on
the basis of no objection extended by complainant and alleged victim,
therefore, case of present applicant requires further inquiry in terms of
Section 497(2), Cr.PC.
4. On the
other hand, learned D.P.G., assisted by learned counsel for complainant, opposed
for grant of bail to the applicant on the ground that alleged victim fully
implicated the present applicant in her statement under section 164, Cr.PC
recorded by concerned Judicial Magistrate on 15.01.2024, in which she has
provided all the details of alleged offence; that police has not properly investigated
the case and one ASI investigated the case, otherwise he is not competent to
investigate the rape case; ocular version is corroborated by medical evidence,
however, they admitted that DNA report is negative.
5. Heard
learned counsel for applicant, D.P.G., counsel for complainant and perused the
material available on record.
6. It
is a matter of record that in FIR it is alleged that incident of committing
rape was committed four months prior to registration of FIR and alleged victim
was pregnant of four months, which later on ended into a miscarriage; that
complainant who is wife of co-accused Muhammad Aslam and alleged victim is his daughter,
have fully implicated Muhammad Aslam in FIR as well as 161, Cr.PC statements
recorded on 11.01.2025. About 5 days after registration of FIR her statement
under section 164, Cr.PC was recorded by Judicial Magistrate concerned, wherein
alleged victim has deviated from her first version and implicated the present
applicant in the alleged offence for committing rape with her. Moreover,
complainant and alleged victim have recorded her no objection for grant of bail
to co-accused Muhammad Aslam, who has been admitted to bail. Learned counsel
for complainant mainly argued that ASI was not competent to investigate the
instant case. Any defect in investigation does not debar the applicant from
grant of bail. No doubt this is a case of two version, hence it requires
further inquiry in terms of section 497(2), Cr.PC. Therefore, applicant/accused
is admitted to post arrest bail, subject to furnishing solvent surety in the
sum of Rs.200,000/- (Rupees two hundred
thousand) and P.R. Bond in the like amount to the satisfaction of the Nazir
of this Court.
7. Needless
to mention here that the observations made hereinabove are tentative in nature,
the same would not influence the trial Court while deciding the case of the
applicant/accused on merits.
8. Instant
criminal bail application is disposed of in the above terms.
J
U D G E
Gulsher/PS