2019 PLP 39 (YLRN)

AMJAD ALI SAHITO, J.

By this single order, captioned bail applications arising out of same crime are disposed of together. Bail Application No.S-220 of 2018 is directed against the order dated 07.04.2018, passed by learned III-Additional Sessions Judge Mirpur Mathelo, whereby the pre-arrest bail application of the applicant/accused Aftab Ahmed was declined, whereas, Bail Application No.S-321 of 2018 is directed against the order dated 25.05.2018 declining the post-arrest bail of applicant/accused Ghulam Murtaza Kalwar.

2. Brief facts relevant for disposal of instant bail applications are that on 13.03.2018, complainant Amir Ahmed Gabole lodged FIR alleging therein that Ali Asghar aged about 17-years is his son and studying in 8th class. On 09.03.2018 at evening time, Ali Asghar left house for purchasing some household articles at Bhitai Chowk City Mirpur Mathelo, but he did not return back, as such complainant started searching his son and during search he came to know that five persons have taken his son to Bago Dah road for illicit purpose, hence he along with Rasheed Ahmed and Ali Akbar went there and when they reached at Mirani plants, where they saw that accused Ghulam Murtaza, Aftab Ahmed caught hold the arms of Ali Asghar, his Shalwar was removed and accused Sadar Deen and Ali Hassan were committing sodomy with Ali Asghar turn by turn and Ali Asghar was crying and one unknown accused was waiting for turn. All accused made resistance with complainant and then ran away. During the act of accused, Ali Asghar received injuries on his hand and feet, therefore, complainant brought his son at P.S. obtained letter for medical treatment and then victim was referred by Civil Hospital Mirpur Mathelo to Sukkur Civil Hospital for letter and treatment and after leaving the victim there, complainant appeared at P.S. and lodged the above FIR.

3. It is, inter-alia, contended by the learned counsel for the applicants that applicants are innocent and have falsely been implicated in this case; that there is inordinate delay of four days in lodging the FIR and such delay has not been explained by the complainant; that PWs are closely related to the complainant, therefore, their statements cannot be relied upon safely; that the medical evidence is in negative with regard to unnatural offence as Medical Officer in his final opinion has opined that no offence of sodomy has been committed. Learned counsel for applicant Aftab Ahmed further added that his client is minor and student and he has not committed the alleged offence. He further argued that after getting interim pre-arrest bail, applicant Aftab Ahmed is regularly attending the trial court and he is no more required for further investigation. Lastly, learned counsel submitted that it is a fit case for further enquiry, therefore, both applicants/accused are entitled for concession of bail.

4. On the other, learned counsel appearing on behalf of complainant contended that delay has properly been explained by the complainant that firstly he approached police station, wherefrom his son was referred to Civil Hospital, Mirpur Mathelo and then victim was referred to Civil Hospital, Sukkur and leaving victim there, he appeared at police station and lodged the FIR; that applicants/accused are nominated in the FIR and the alleged offence falls within the prohibitory clause of section 497, Cr.P.C. that victim in his statement recorded under section 161, Cr.P.C. has fully implicated the applicants/ accused with the commission of alleged offence so also PWs have also implicated the applicants/accused in their statements; that the medical evidence is also supported by the version of complainant recorded in the FIR, victim and PWs recorded in their statements, therefore, he opposed for the grant of pre-arrest bail to applicant Aftab Ahmed and post-arrest bail to applicant Ghulam Murtaza.

5. Learned DPG for the State adopted the arguments advanced by learned counsel for complainant and opposed the bail applications.

6. I have considered the submissions of learned counsel for the parties and have gone through the material available on record. The allegations levelled against the applicants/accused are that they along with co-accused have committed sodomy with the son of complainant, who is aged about 17-years. During the course of investigation, statement of victim was recorded under section 161, Cr.P.C., in which he has fully implicated the present applicants/accused along with co-accused. The victim was also medically examined. It is settled principle of law that at the bail stage only tentative assessment is to be made. Perusal of record emanates that names of applicants/accused transpired in the FIR with specific role. The statement of victim is also supported by the medical evidence, that he has received injuries on the different parts of the body. It is well settled principle of law that statement of victim alone in a rape case would be sufficient to connect the accused with the commission of the offence if the statement of victim inspires confidence. No material has been placed on record from which it could be deduced that the case is outcome of enmity. The delay in lodging of FIR has properly been explained by the complainant. Even otherwise, delay per se in lodging of FIR is no ground for grant of bail as each and every case is to be decided on its own peculiar facts and circumstances. It seems that applicants/accused are involved in the heinous offence of moral turpitude and the case of the applicants/ accused securely falls within the prohibitory clause of section 497, Cr.P.C.

7. Furthermore, it is settled proposition of law that concession of pre-arrest bail is always extended in the case of mala fide and ulterior motives on the part of complainant/prosecution to save innocent people from their unjustified arrest and humiliation at the hands of police, but learned counsel for applicant Aftab Ahmed has failed to bring on record any material to believe that he has falsely been involved due to malice or ulterior motives of the complainant or he has not committed the alleged offence.

8. Considering the above facts and circumstances, applicants/accused have failed to make out their case for grant of bail, as there is sufficient material available on record to connect them with the commission of alleged offence. Hence, I do not find a fit case for grant of bail to the applicants and resultantly, instant Bail Application No. 220 of 2018 filed by applicant Aftab Ahmed seeking pre-arrest bail so also Bail Application No.S-321 of 2018 filed by applicant Ghulam Murtaza seeking post-arrest bail stand dismissed. Earlier order granting interim pre-arrest bail to applicant Aftab Ahmed is also hereby recalled.

10. Needless to mention that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial. MQ/A-2/Sindh Bail refused.