2017 PLP 162 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

Through instant bail application, applicant Muhammad Ibrahim seeks pre-arrest bail in Crime No.158/2016 offence under sections 377, 337-A(i), F(i), P.P.C., registered at P.S., Khipro. Earlier his bail application has been dismissed by learned Additional Sessions Judge, Khipro vide order dated 10.02.2017.

2. Precisely, prosecution case is that on 26.12.2016 complainant Sarang, his son victim Gaji and brother Sajjan were present on their Tyre shop. At about 3.00 pm applicant accused came there on Motor cycle and sought permission of Gaji from the complainant on the pretext of repairing the punctured tyre of tractor and took Gaji on his motorcycle. Gaji became late, therefore complainant and his brother went towards the accused on motorcycle and when at 5.00 p.m they reached near Dargah Manthar Faqeer, heard cries from LAEE bushes and went there and saw applicant accused committing sodomy upon his son Gaji. The complainant challenged the accused, who leaving Gaji drove away his Motorcycle. The victim told the complainant that accused brought him on false pretext, maltreated him and committed sodomy, thereafter, complainant took the victim to P.S, got letter for treatment and then lodged the FIR.

3. Learned counsel for the applicant contends that the applicant accused is innocent and has been falsely involved in this case by the complainant; the prosecution story appears to be false and fabricated; there is unexplained delay in lodging the FIR; the medical evidence does not support the prosecution version; the place of incident is a busy area but no independent person has been cited as witness, therefore, case against the applicant accused calls for further inquiry. In support of his arguments, he relied upon case of Rafiullah Kakar and 2 others v. The State (2000 PCr.LJ 1452), Mazaullah v. The State (PLD 1961 (W.P.) Peshawar 7) and Muhammad Shafique alias Chuma v. The State (2008 PCr.LJ 958).

4. As against above, learned APG vehemently opposed instant bail application and contended that the applicant is real culprit, his name appears in FIR with specific role of committing sodomy upon victim, which is supported by PWs in their statements recorded under section 161, Cr.P.C. and medical certificate issued by MO. He also contended that there is sufficient material on record to connect the applicant accused with the commission of offence, and no mala fide has been proved against the complainant for false implication of applicant in this case, therefore according to him the impugned order passed by learned Additional Sessions Judge does not suffer from any infirmity.

5. I have heard the learned counsel for the applicant, learned APG for the State and examined the material available on record.

6. A careful examination of record reflects that the name of applicant accused appears in FIR with specific role of taking the victim from Tyre shop on false pretext of repairing punctured tyre and committing sodomy upon him, which is supported by PWs in their statements recorded under section 161, Cr.P.C. The Medical Certificate corroborates the prosecution version. As per MC, the MO found 08 injuries on the person of victim and he further opined that sodomy has been committed upon the victim. Chemical examiner's report reveals that Human sperm was detected in to Articles Nos. 1, 2, 4 and 5, which also corroborates the version of victim. So far as the delay in FIR is concerned, apparently same is explained by complainant in FIR that firstly he took the victim to P.S, got letter for treatment and then lodged the FIR. Even otherwise deeper appreciation is deprecated while deciding bail application. Furthermore, this is a pre-arrest bail application and it is settled proposition of law that concession of pre-arrest bail is always extended in the cases of mala fide and ulterior motive on the part of complainant/prosecution to save innocent people from their unjustified arrest and humiliation at the hands of police but in the case in hand the learned counsel for the applicant has failed to bring on record any material to believe that the applicant has been falsely involved due to malice or ulterior motives of complainant or he has not committed the offence. In this respect reference can be made to case of Muhammad Aslam and another v. The State (2007 SCMR 1412).

7. The facts of case law relied upon by learned Additional Sessions Judge in impugned order are very much applicable to the facts of instant case, in which bail has been declined, while the case law relied upon by learned counsel for the applicant is distinguishable.

8. For what has been discussed above, I am of the view that the learned counsel for the applicant has failed to point out any illegality or wrong exercise of discretion to convince this Court for interference in the impugned order. Resultantly, instant bail application being devoid of merits is hereby dismissed. WA/M-44/Sindh Bail refused.