ABDUL RAHEEM Versus State
ORDER
ABDUL MAALIK GADDI, J .---Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.108/2015 registered under sections 302, 201, 377 and 511, P.P.C. read with section 7, A.T.A., 1997 of Police Station Ahmedpur, District Khairpur. Now the applicant/accused Abdul Raheem son of Allah Andal by caste Wistro is seeking his release on bail through instant bail application.
2. The facts of the instant bail application are that on 05.11.2015 at 1300 hours, complainant Niaz Hussain Wistro lodged the instant FIR at Police Station Ahmedpur, District Khairpur stating therein that he has two sons and two daughters. His son Muhammad Akram aged about 08 years, was studying in Class-I. On 03.11.2015, he, his son Muhammad Akram and his brothers Sajjad Ali and Hasamuddin were present in their houses. In afternoon time, his maternal cousin Abdul Raheem Wistro came at his house and after sitting 5/10 minutes, he took away his son Muhammad Akram with him. Till sunset time, his son did not return back to home then he went to the house of his maternal cousin Abdul Raheem Wistro but he was not present in the house then he returned back to his home, thereafter, he along with above named witnesses started search of his son Muhammad Akram and during searching on way Asif Nawaz met with them, who informed to complainant party that Muhammad Akram along with Abdul Raheem were going towards the banana garden of Jan MuhamMad then they made search of the said banana garden till night but could not find any clue. On the next morning i.e. 04,11.2015, he along with above said witnesses again made search of the boy and during searching one Abdul Sattar met with them, who disclosed them that in the last night, he heard some cries in the banana garden of Jan Muhammad then they all went to the house of Abdul Raheem Wistro and met with him and inquired the whereabouts of boy Muhammad Akram, who was seen very confused and said to excuse him as he has committed a mistake, then they insisted him to disclose the whereabouts of Muhammad Akram and they would not do anything with him then he led the complainant party towards the banana garden of Jan Muhammad and disclosed that he has committed the murder of boy Muhammad Akram and has hidden his dead body under the leave of banana. He removed the leaves of banana and shown the dead body of Muhammad Akram, which was lying there. In the meantime, accused Abdul Raheem fled away in the banana garden, thereafter, complainant party saw that the blood was oozing out from his nose and mouth and violation marks were also found on right side of his neck. His neck was also swelled and was lying dead. It was about 1000 hours, complainant party informed to Police of Police Station Ahmedpur and later on Police came there. After completing the legal formalities brought the dead body of deceased boy at Taluka Hospital Pir-Goth, where the post mortem of the dead body was conducted, thereafter, the dead body of deceased was handed over to complainant and after completing the funeral ceremony, complainant went to Police Station, where he lodged the instant FIR that accused tried to commit the act of sodomy with his son Muhammad Akram then he committed his murder by throttling and closing his voice and in order to conceal the offence, accused hidden the dead body of deceased boy under the leaves of banana.
3. It is argued by Mr. Manzoor Hussain Balouch, learned counsel for the applicant/accused that the alleged incident took place on 03.11.2015 whereas, the same was lodged on 05.11.2015 by complainant after the delay of two days, for which no satisfactorily explanation has been furnished; that the applicant/accused is innocent and has been falsely implicated in this case by the complainant party with mala fide intention and ulterior motives due to enmity and maliciously; that it is unseen incident as no one saw the alleged act of sodomy, and committed the murder of deceased boy; that the dead body was not recovered from populated area and the same is allegedly recovered from the Banana Garden, hence the story of FIR is false and fabricated one; that the applicant/accused is juvenile and this aspect has not been considered by the trial Court while dismissing bail application as the age of the applicant/accused was about 14 years at the time of registration of the FIR; that in this matter 08 witnesses have been examined but their evidence on record is contradictory; that the applicant/accused is behind the bars continuously since his arrest, therefore, looking to the circumstances and hardship faced by the applicant/accused and his family, the applicant/accused may be granted bail. In support of his arguments, he has relied upon the case law reported in 1986 PCr.LJ Page 1740.
4. As against this, Mr. Abdul Rehman Kolachi, Deputy Prosecutor General for the State has opposed this bail application on the ground that the name of applicant/accused is mentioned in the FIR with specific allegation of attempt to commit sodomy with a juvenile boy and after that committed his murder; he further submits that in this matter eight prosecution witnesses have been examined; that the offence allegedly committed by applicant/accused is heinous one, in which one innocent boy has been murdered after committing sodomy with him, thus, there is sufficient material/evidence against the applicant/accused to connect him in the instant Crime/Case.
5. We have heard the learned counsel for the parties at a considerable length and have gone through the case papers so made available before us.
6. As far as arguments of learned counsel for the applicant/accused that FIR has been delayed, in our view has no weight, as in such a like cases, the people/victim's family is ever remain under fear, coercion and compulsion and may not dare to even disclose the facts to their elders' community people. In this case, the allegation against the applicant/ accused is that he has made an attempt to commit sodomy with the deceased Muhammad Akram and thereafter, murdered him brutally. It appears from the record that as soon as the complainant came to know about this unfortunate incident, he got his case registered against applicant/accused. In this respect, the delay so caused has been explained plausibly and same is not helpful for applicant/accused. Besides each case has its own merits and circumstances, therefore, delay in every criminal case cannot be presumed to be fatal for the prosecution case, because mere delay in lodgment of FIR alone is not sufficient to claim release on bail.
7. The applicant/accused is nominated in the FIR with specific role that on the relevant date and time, he took complainant's son with him from his house in presence of PWs Sajjad Ali and Hasamuddin and when Muhammad Akram (deceased) did not come to home till evening then complainant went to the house of applicant/accused where he was not available then complainant party went in search of Muhammad Akram and during process of search they met with PW Asif Nawaz, who disclosed to them that he saw Muhammad Akram with applicant/accused and were going towards Garden of Banana of Jan Muhammad, situated in Deh Saeedpur; however, on the next date i.e. 04.11.2015 when complainant along with PWs Sajjad Ali and Hassamuddin reached the house of applicant/accused where he admitted his guilt and taken to them with him and shown dead body of deceased, which was hidden by him after committing his murder in the Garden of Banana of Jan Muhammad, situated in Deh Saeedpur, in presence of mashirs Rabnawaz and Zaheer Ahmed.
8. The statements of PWs under sections 161 and 164, Cr.P.C. of Asif Nawaz. Abdul Sattar, Hassamudin and Sajjad are on record, in which they have implicated the applicant/accused in the commission of offence. These witnesses having no inimical terms with the applicant/ accused nor the applicant/accused has alleged any enmity with the said witnesses and complainant. It appears from the record that in this case, eight prosecution witnesses including complainant have been examined by the trial Court. According to Deputy Prosecutor General, the said witnesses have supported the prosecution case by implicating the applicant/accused in the commission of the offence.
9. We have perused the entire record so made available before us. It appears that sufficient material is available with the prosecution to connect the applicant/accused in the commission of the offence.
10. It is argued by the learned counsel that applicant/accused is a juvenile as at the time of alleged incident he was aged about 14 years, therefore, he may be granted bail. Reverting to the contention as raised by the learned counsel for the applicant/accused, it is suffice to say that accused could not be given benefit under the Juvenile Justice System Ordinance, 2000 until and unless he was declared juvenile by the Court of competent Jurisdiction, which in the present case is lacking. Even otherwise serious allegation has been levelled against the applicant/accused, which too apparently supported by prosecution witnesses during investigation. Since the trial against the applicant/ accused is entered into advance stage and is about to conclude in near future, therefore, at this stage no case of bail is made out in favour of the applicant/accused. We, therefore, under the above mentioned facts and circumstances are not inclined to grant bail in favour of the applicant/accused.
11. It appears from the record that the applicant/accused is behind the bars since his arrest, therefore, the Presiding Officer of the learned trial Court is directed to conclude the trial as early as possible and shall not grant unnecessarily adjournments to either side.
12. Needless to mention here that any observation made herein this order, shall not affect the merit of case. Compliance report be submitted to this Court though Additional Registrar of this court.
13. This bail application was dismissed after hearing the parties in the early part of the day in the open Court and aforesaid are the reasons in support of that short order.
ADN/A-148/Sindh Bail refused.