SAJAN Versus State
ORDER
SHAMSUDDIN ABBASI, J.--- Through instant bail application, applicant Sajjan son of Rawal Larik seeks post-arrest bail in Crime No.306/2019 Police Station, Naushehro Feroze for offences punishable under sections 376, 511, 354, P.P.C. Earlier his bail plea was declined by learned trial Court vide order dated 09.01.2020.
2. The facts of the prosecution case are that complainant Mst. Ajna wife of Ghulam Shabir Larik lodged FIR on 20.12.2019 at 2000 hours at Police Station, Naushehro Feroze stating therein that her husband Ghulam Shabir Larik is serving in Pak-Army and posted at Rawalpindi. It is further alleged that on 13.12.2019 all the family members had gone to attend the marriage ceremony and she was alone in the house. Adjacent to her house there is house of accused Sajjan Larik who is brother-in-law of her husband. There is a small wall between their house. On said date i.e. 13.12.2019 at about 3:00 p.m. she saw that accused Sajjan son of Rawal Larik jumped over the wall and entered in her house and he called her inside the room to which she resisted and gave names of Holy Quran but accused forcibly dragged her in the room. Her clothes were torn however, accused Sajjan tried to commit Zina with her, she raised cries which attracted PWs Lal Khan Larik and her son Ghulam Mehdi Larik who came running there and accused on seeing them coming fled away by climbing over the wall. She narrated such facts to PWs and also made complaint to her husband through cellular phone who kept her on waiting and on his arrival she lodged FIR.
3. It is contended by learned Counsel for applicant that applicant is innocent and has falsely been involved in this case by the complainant with mala fide intention and ulterior motives; that there is delay of 07 days in lodgment of FIR; that incident of rape has not been committed by the applicant and it is only attempt to commit Zina therefore, section 376, P.P.C. is not applicable in this case; that applicant was arrested on 23.12.2019 and case has been challaned and applicant is no more required for further investigation. By stating so, they prayed for grant of bail.
4. On the other hand, learned Deputy Prosecutor General appearing for the State assisted by learned Counsel for complainant vehemently opposed for grant of bail on the ground that applicant is habitual offender and he has criminal history. In this regard he has placed on record five FIRs lodged at same Police Station; that offence so committed is against society therefore, applicant is not entitled for grant of bail.
5. Heard learned Counsel for the parties and perused the material available on record. No doubt, there is delay of 07 days in lodgment of FIR. Normally, delay is considered to create doubt about the case when it is used for deliberation, manipulation and setting some score or widen the net to implicate innocent people. In the present case, delay has been apparently well explained as complainant/victim soon after the incident informed her husband through cellular phone, who was serving in Pak-Army at Rawalpindi, who kept her on waiting for his arrival and on his arrival she lodged FIR. Usually in cases of Zina delay in lodging of FIR would not be fatal on the ground that victim kept silence to avoid danger to family's honour. Most important aspect in cases of Zina, if the victim is unwilling to yield to sexual intercourse forced upon her such a resistance may lead to the tearing of clothes, infliction of personal injuries. In the present case, victim/complainant being unwilling resisted and resultantly her shirt was torn and she received scratches and bite on her body. During investigation I.O. secured torn shirt and she was also examined by W.M.L.O. who after her examination issued such certificate to the effect that she had received scratches on her body. I also do not see any mala fide on the part of victim to falsely implicate present applicant who is brother-in-law of her husband and is residing adjacent to her house who entered in her house by calculating time when victim was alone and her family members had gone to attend marriage ceremony by climbing small common wall. Learned Counsel for applicant raised plea before this Court that he has been falsely implicated in this case on account of street dispute between the parties, it appears that applicant would not justify his false implication in the present case without any material in his support.
6. Another plea taken by learned Counsel for applicant that section 376, P.P.C. is not applicable in the present case on the ground that no rape has been committed. In my considered view applicant attempted to commit Zina. Accused had made certain movements in execution of completing his design victim offered resistance, resultantly her clothes were torn.
7. In case of Sultan Bibi v. Ibrahim and 2 others reported in PLD 1991 SC 705, the Honourable Supreme Court has held that;
9. "In attempt the accused commits some overt act towards achieving his object but cannot succeed due to interruption by some external facts and circumstances which are not connected with the object of the accused. He fails to attain the object through some independent circumstances. An accused who has made certain movements in execution of completing his design but failed to consummate the substantive offence due to the intervention of certain facts the attempt is complete. If the attempt has succeeded the natural result would be that the offence charged would have been committed."
15. "The modesty of the girl had been outraged on the first act of the respondents when one of them caught hold of her by arms. The subsequent acts of the accused were in furtherance of their common object to commit rape. These acts of the accused could not minimize the gravity of the offence. The additional circumstance is that in the struggle to save her from the clutches of the respondents, her shirt was also torn. These series of acts would constitute and offence under section 18 of the Ordinance. They had made attempts to commit rape on the person of Mst. Sultan Bibi. By no standard it can be said that all these acts only amounted to outraging the modesty of the girl."
8. Learned Counsel for complainant has also produced criminal record of applicant which reveals that applicant is involved in five criminal cases viz. Crime Nos.84/2017 Police Station Kandiaro under section 9(c), CNS Act, 139/2015 Police Station Naushehro Feroze under sections 3/4, HO, 199/2018 Police Station Naushehro Feroze under section 9-B, CNS Act, 212/2019 Police Station Naushehro Feroze under section 9(c), CNS Act and Crime No.24/2020 Police Station Naushehro Feroze under section 9(c), CNS Act. The applicant is nominated in the FIR with specific role of trespassing in to the house of prosecutrix/victim in order to commit rape with her. Prima facie sufficient material is available on record to connect the applicant with the commission of alleged offence, which falls within the prohibitory clause of section 497, Cr.P.C. Hence, I do not see any merit, to grant bail to the applicant. Therefore, bail application is dismissed. However, trial Court is directed to decide the case within 03 months.
9. Needless to mention that observation made hereinabove are tentative in nature. Trial Court shall not be influenced while deciding the case on merits.
Bail application stands disposed of.
SA/S-103/Sindh Bail declined.