IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

        Crl. Bail Application No.S-600 of 2020        

 

                          

          Applicant             :         Abdul Khalique s/o Khursheed Ahmed,

                                                through Mr. Achar Khan Gabol, advocate

 

Respondent         :         The State, through Mr. Aftab Ahmed

Shar Addl. P.G.

 

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Date of hearing     :         23.08.2021

Date of order         :         23.08.2021

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                               O R D E R

 

 

ZAFAR AHMED RAJPUT, J.-    Applicant/accused Abdul Khalique (shown in F.I.R. as Khaliq) being abortive to get the concession of pre-arrest bail from the  Court of Additional Sessions Judge-IV, Khairpur in criminal bail application No. 2001 of 2020 vide order dated 13.10.2020, through this application seeks the same concession from this Court in Crime/FIR No.65 of 2020, registered under section 376, P.P.C. at Police Station, Hingorja. The applicant was admitted to interim pre-arrest bail by this Court vide order, dated 19.10.2020.

 

2.      As per FIR, the allegation against the applicant is that he, on 12.09.2020 at about 09:00 p.m., committed rape on complainant’s daughter, namely, Mst. Fatima against her will, in the Cattel pen of one Qabil Mangnejo. 

 

3.      Learned Counsel for applicant has contended that the applicant is innocent and has falsely been implicated in this case; that there is delay of two days in lodging of FIR without any plausible explanation; that the parties already have inimical terms and in this regard the brother of applicant had lodged an FIR being No.123/2012 at Police Station, Hingorja, under sections 382, 337A(i), F(i), 18, 149, 506/2 P.P.C. against the sons-in-law of the complainant, namely, Ghulam Mustafa and Asadullah; that there is no eye witness of the alleged incident and applicant has been involved in this case only on the sole statement of victim Fatima; that the alleged incident is stated to have been taken place in the cattle pan of Qabil Mangnejo but the I.O. did not record his statement; that DNA report about the swab and human sperm on cloth of the alleged victim did not match with the profile of the applicant; even as per Provisional Medical Certificate no marks of violence on the body of alleged victim was found; that only detection of human sperm on the cloths of victim does not connect the applicant with the alleged offence especially in the absence of positive DNA report and, therefore, it is yet to be determined at the trial if the applicant has committed the alleged offence; hence, the case of the applicant squarely falls within the ambit of further inquiry. In support of his contentions, the learned counsel has relied upon case of Muhammad Tanvir v. The State and others (2017 SCMR 366) and Umar Nasir v. The State and another (2018 P. Crl. LJ Note 133).

 

4.      Per contra, learned Addl. P.G. while opposing instant bail application has maintained that the applicant was seen by the complainant and her son-in-law coming out from the Bara of Qabil Sahito after committing alleged rape on her daughter; that the victim in her statement recorded under sections 161 and 164, Cr.P.C has fully connected the applicant with the commission of alleged offence; that the report of chemical examiner supports the prosecution case that the alleged victim was subjected to rape; that there is no direct enmity of applicant with the complainant party; that sufficient material is available with the prosecution to connect the applicant with the commission of alleged offence.

 

5.      I have heard learned counsel for applicant as well as Addl. P.G and have perused the material available on record with their assistance.

 

6.      The alleged incident is stated to have taken place on 12.09.2020 at about 2100 hours, while FIR was lodged on 14.09.2020 at 2200 hours, with un-explained delay of two days; hence, the presumption of consultation and deliberation, so also malice and ulterior motive, for lodging of the FIR cannot be ruled out. It appears that there is no eye-witness of the incident. The alleged act is stated to have been committed in the cattle pen of one Qabil Mangnejo, who has admittedly been not examined by the investigating officer. It is strange to note that at the relevant time neither said owner nor his any servant was present in the cattle pen. Though the victim Kaneez Fatima in her statement recorded under section 164, Cr.P.C. has implicated the applicant with commission of alleged offence but the said statement was recoded on 08.10.2020 after 25 days of the alleged incident, without justifying such delay, which renders its credibility doubtful. It further appears that as per provisional MLC, the victim, aged about 15 years, appeared before the Woman Medical Officer for her medical examination after 16 hours of the alleged incident and WMO noted no evidence of external violence on the body of the victim and abrasion or bruise mark on thighs and external genitalia. It also appears that the WMO secured one vulva and perineum cotton swab, one low vaginal cotton swab, one high vaginal (posterior fornix) cotton swab and shirt and shalwar of the victim, which on microscopic examination found containing human sperm as per report of Chemical Examiner, yet as per DNA report, the applicant was not contributor of semen stain/sperm fractions identified on vaginal swab samples and cloths of victim. In these circumstances, as observed by the Apex Court in the case of Muhammad Tanvir (supra) the case against the applicant calls for further inquiry within the ambit of Sub-Section (2) of section 497, Cr.P.C. I, therefore, confirm interim pre-arrest bail granted to applicant vide order, dated 19.10.2020 on same terms and conditions.

 

7.      Needless to mention here that observation made by this Court hereinabove are tentative in nature and shall not influence the trial Court by deciding the case on merits and in case the applicant misuses the concession of bail in any manner whatsoever, the trial Court shall be at liberty to cancel his bail after serving requisite notice.

 

          Criminal Bail Application stands disposed of.

 

                                                                                                        J U D G E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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