ABDUL REHMAN MIRBAHAR S/O MUHAMMAD RAMZAN (Applicant) VS THE STATE (Respondent)

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v/ Abdul Rehman S/o Muharnmad Ramzan Mirbahar, Presently confined at District Jail Badin............. Applicant/Accused Y,.flyr!* lnil,/4 44*, F.-*, 6i/-t c n,e. 5.t ur lar. 't"t'ft-TL4-Ha. vERsus = \ .,:.". The State Respondent

Crime No.153 of 2024, Police Station: Gharo UlS.: 376 506/2 201

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THE HIGH COURT OF SINDH AT KARACHI

Crl. Bail.Application No. 418 of 20?5

Applicant Abdui Rehman through Mr. Ahmed Hussain Jokhio, advocate.

Respondent The State through Mr. Qamaruddin Nohri, , Deputy Plosecutor General a/w S.I. Zulfiqar AIi, I.O.

Complainant Yaseen through Mr. Dur Muhammad Mailah,advocate af w complainant

Date of hearing 17e March, 2025

Date of Order 17hMarch,20'25

ORDER

c OtJ e (-) ]an Ali Juneio |.- The applicant/accused has filed the present u, + t;

U) criminal bail hpptication seeking post-arrest bail in connection a witir FIR No.153 ol 2024, registered at P.S. Garho, District 'lvZ S Thatta, undel Sections 376/506(2)/ 201., of the Pakistan Penal a Code (PPC). Initially, the applicant/accused approached the learned Sessions Court, Thatta, through Bail Application No.931,/2024, which was dismissed vide Order dated: 05.11.2024. Consequentiy, the Applicant filed Criminal Bail Application I{o.2619 ol 2024 before this Court, which was also dismissed vide Order dated: \2.12.2024.

The facts relevant to the present criminai bail application are as follows:

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'"fhe FIR was lodged by Coruplainant yaseen S/o Abtlul Rehman on 22-70-2024 at 7500 hours. The Complainant alleged that his sister, Mst. Sitaru, ageil about 20 years,

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t2l a ffiaffieil to Abdut Ghaffar S/o Muhammad Yousif Mirbahar, has been subjected to sexual harassment and assault W the Applicant/Accused, roho is the Compl*inanfs father. The Complainant further allegeil that the Applicant/Accused has been committing zina zaith the oictim anil has beaten her whdnettpr she refttsed his adoances' Thc Complainant also stateil that his ntother, Shakeela, ,and father, Abdul if. Rehman Ghe Applicant/Accused), haoe not relraineil ftom . . 3 such misconduct' The Complainant teporteil the mattet to

local elders (Nekmards), but no action was taken' Subsequently, the Complainant apptoacheil the Additionat sessions ludge, MCTC Court Thatta' toho issueil hn oiler leailing to the rcgistration of the ElR"'

3.The leamed counsel for the Applicant/Accused argued that there are no reasonable grounds to believe the Applicant comnritted the alleged offences, ui tt't" fm lacks specific details and or, such as the time of the incident, the number'of attempts' the last attempt, indicating mala fide on the part of the

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\f,l + Complainant. f{e contended that there is no evidence on record and medical except the Complainant's statement, and the DNA offence' It is 7v-) E reports are trregative, which disproves the alleged further argPed that there are contradictory statements of the

Complainalrt and PWs. The FIR was allegedly lodged the story narrated maliciously due to a dispute over a plot' and the FIR is false, concocted, and unbelievable' It is further in argued that the FIR does not disclose the exact time of the inordinate delay incident, suggesting it never occurred, and the in reportirlg raises doubts about its veracity' necessitating The counsel

further inqurry under Section a97Q) Cr'P'C' emphasized that the basic concept of bail is to protect the He further liberty of an innocent person until proven guilty'

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argued that the Applicant is no longer required for investigation hs the challan has been submitted, the allegations require further probe, and the Applicant has been in custody \ for two mollrths with no purPose served by his further detention. AdJditionally, the Applicant is a local person with no of absconding. The counsel p'rayed for the grant of bail' -risk asserting that the Applicant's continued detention is unjustified. The leamed counsel has relied upon the case laws i.e. 2O2O SCMR 418; 2023 SCMR 397;2023 MLD 7Q72; and 2022

P.G.L.J.87.

4.The iehmed APG and counsel for the complainant opposed the bail application, argurng that the allegations against the Applicant are grave and involve serious offences of sexual harassment and assault. He contended that the Complainant's statement, supported by the FIR, establishes h prima facie case against the Applicant' The negative DNA and medical rePorts do not exonerate the Applicant' as the offence Ol./ may not haye left physical eVidence, and the delay in lodging c the FIR is elplained by the Complainant's attemPts to resolve

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l lthe matter $rough local elders' The counsel lor complainant highlighted that the Applicant, bging the father of the lva cl Complainant and victim, held a position of trust and authority' which he allegedly abused. He further argued that the by both Applicant's lprevious bail applications were dismissed no the Session5 Court and this Honorable Court' indicating and the grounds fo1 granting bail. The gravity of the offence need to proiect the victirr( and society outrveigh the Applicant's of' '

right to bail, and his release wouid jeopardize the integrity the judiciaf Process. The leamed counsel prayed for I the

dismissal of the bail applicatiory emphasizing that the of Applicant's continued custody is necessary in the interest

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5.I have carefully considered the arguments presented by the learned counsel for the Applicant/Accused as well as the learned Deputy Prosecutor General and leamed counsel for the complainant. i Additionally, I have examined the material available on record with the utrnost care and judicial prudence, keeping in view the pitncipie of tentative assessment. UPon such assessment, it is evident that during the proceedings of the pre-arrest bail application (No' 2619 of 2024), this Court, in its order dated 12:L2-2074, made the following observation: "Tfte oictim herself is present in Court, she has narrated the entire story of hcr ordeal. Besides, the FIR and L64 Cn.P.C. of the '''tictim clearly point out that appticant is not entitled at least to grant of pte-artest i;ail, which is cxtra ordinary concession meant only to protect innocent persolls falsely ,impticated in the criminal case' The real diaryhter of the applicant has leoelled heinous allegations against her father and pnmfficie thete is no recoril that thex allcgations are an

rl of any dispute befween the parties. Hence, thc applicant is . . a .outcome not entitled to concession of pre-arrest bail. This application is dismissed". The FI& along with the statement of the victim o, recorded under Section 164 Cr.P.C., prima facie establishes the

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+ involvement of the Applicant in the commission of the offence' 1c) The victim has consistently alleged that the Applicant, her z'.| father, committed zina with her and subjected her to physical lva E \ abuse. These allegations are grave and supported by the FIR, which was lodged after attempts to resolve the matter tluough ,local'elders failed. The negative DNA and medical reports do not exonerafe the Applicant. The absence of physical evidence does not necessarily disprove the commission of the offence, especially in cases where the offence may not have left physical traces. The validity and admissibility of the DNA rePort are l 2/ matters to be determined dtuing the trial. At this stage, the Court is onXy required to assess the material tentativelp and deeper appreciation of evidence is not permitted' Therefore, the

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negative DNA report does not render the prosecution's case unbelievable.'Ihe delay in lodging the FIR has been sufficiently explained by the Complainant, who attempted to resolve the matter through local elders before approaching the court. This . delay does not uldermine the credibility of the allegatiotls, . ' a especially in' cases invotving sensitive and personal matters such as sexual assault within the family. The allegations against the Applicant are of a heinous nature, involving the commission of zina with his own daughter. Such offences are not only grave uRder the law but also have severe societal implications. The need to protect the victim and society \ outweighs the Applicant's right to bail. The Apptcant's release , 3t thi: stage may jeopardize the integrity of the judicial Process ,: and the safety of the victim. The Applicant's previous bail applicationslhave been dismissed by both the Sessions Court and this Honorable Court. There is no new material on record to warrant a different conclusion.

()tl/ 6. Undo ubtedly, the considerations for ganting Pre-arrest bail differ significantly from those for post-arrest bai1, tlJ s- t:

particularly concerning additional grounds such as "humiliation', "harassment" , " mala fides", "ulterior motives", o )va and the "intention to disgrace or dishonor" ' Flowever, once this Court has thorougNy and exhaustively examined the merits of the case while deciding the Applicant's Pre'arrest bail application, it cannot adopt a contrary view on the same merits unless new grounds emerge that warrant further inquiry into the Applicant's guilt. In similar circumstances, in the case of Muhammait Khan a. The State(2005 P'Cr'L'J' L797)' the I leamedLahoreHighCourtobservedthat"itiswell-settledthttif pre-arrest bail is dectined on meits and not merely due to the absence of mala fides, then post-arrest bail cannot be granted either"' A similar stance was taken in the case of Mian Saghir Ahmed and

i6I b another a. The State (2005 P.Cr.L.]. 654), reinforcing this principle. The case laws cited by'the leamed counsei for the

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Applicant are not applicable to the present matter, as they are distinguishable from tl're facts and circumstances of this case.

7.For the peasons stated above, the Present bail application submitted on behalf of the Applicant being devoid of substantive meri! ii hereby dismissed. It is expressly clariJied that the observations and conclusions rmdered in this order are strictly limited to the disposal of the present bail application and do not constitute an opinion on the merits of the case. These remalks shall not be interpreted as prejudicing the rights, daims, or defenses of either Party - Prosecution or defense - during the trial proceedings. The trial Court shali adjudicate the matter independently, uninfluenced by any findings articulated herein, and solely based on evidence adduced and legal principtes applicabte at the appropriate

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