2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Fayyaz has impugned order dated 18.09.2015, whereby his earlier bail application was declined by the Court of learned VIII-Additional Sessions Judge, Karachi East.

2. Relevant facts narrated in instant application are that complainant Mst. Manzooran lodged FIR on 28.02.2008 regarding the incident occurred on 06.06.2007 stating therein that she was married with Ahmed Ali about 8 years ago but thereafter she was paralyzed which affected her brain, and her husband left her at the house of her brother Rub Dinno at Jamshed Quarters about 8/9 months ago. Subsequently, brother in law of her brother namely Fayyaz also started residing in the same house and he offered her friendship to contract their marriage and for about 3/4 months, he committed sexual intercourse and she became pregnant. In the month of December 2007, she started vomiting and mohalla people admitted her in Fatima Bai Hospital where six months pregnancy was miscarriage. After few days, her brother admitted her in Edhi Center, Nagan Chourangi, hence instant FIR.

3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated in instant case by complainant with ulterior motives, that per averments of FIR no offence under section 376, P.P.C. has been made out but an offence under section 496-B, P.P.C. is attracted which is bailable: that complainant has expired and her brother Muhammad Siddique appeared before learned trial Court and produced original death certificate. Learned counsel further pointed out that an undertaking for withdrawal from brother's property was also filed which is available at page 41 of the file; that parties were disputed over property which was compromised due to intervention of well-wishers; that applicant was arrested on 31.07.2015 and since than he is behind the bars.

4. While controverting the above submissions, learned APG contended that it is for learned trial Court to decide the nature of offence per the averments of FIR and apply the relevant section for the alleged offence; that applicant is not entitled for the concession of bail at this stage.

5. Heard learned counsel for the parties and perused material available on record which emanates that the incident was occurred on 06.06.2007, while FIR was lodged on 28.02.2008 at Police Station Jamshed Quarters with the delay of about 9 months for which no plausible explanation has been furnished. From the averments of FIR it is crystal clear that complainant was already married woman but due to paralysis, she was residing in the house of her brother. Alleged continuous sexual courses were result of friendship and same were committed with the will and consent of complainant and no element of fear of death or causing hurt nor any kind of harassment was alleged by the complainant against applicant. No complaint was ever made by the complainant to her brother or any other relatives or friends against applicant and even after 8/9 months of miscarriage, she for first time narrated incident to police. Admittedly, no DNA test of applicant was done authenticate the allegations of consented sexual intercourses constitute the offence of rape, it is mandatory that sexual intercourses. To constitute the offence of rape, it is mandatory that sexual intercourse should be committed against will and consent of lady; with her consent but when consent was obtained by putting her in fear of death or causing hurt; with her consent when the man knows that he is not her husband, and her consent was given because she believes that she was lawfully married with other man; with or without her consent when she is under fourteen years of age. In present case, apparently the set allegations does not constitute the offence of rapepunishable under section 476, P.P.C., however, offence, of fornication under section 496-B, P.P.C. is attracted which is punishable up to 5 years and fine. Thus allegations leveled by the complainant requires serious consideration and it is for the learned trial Court to record evidence of remaining witnesses and determine the nature of the alleged offence, as complainant is no more alive in this world, however, her brother was appeared before learned trial Court and his evidence was recorded before by the Court but he did not allege the incident as narrated in FIR and produced copy of FIR and death certificate of the victim.

6. For the foregoing facts and circumstances, applicant has succeeded to make out his case for grant of bail on the ground of further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, applicant is admitted to post-arrest bail subject to the furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Lac) and PR bond in the like amount to the satisfaction of learned trial Court.

7. The observations made above are tentative in nature and the trial Court shall decide the subject case purely on its merits. JK/F-11/Sindh Bail allowed.