Shakir Ullah Vs The State and another

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Judgment Sheet IN.3IrE P$$.I"TAWAR HLSH S$qRT, RHStrAlvAB, JUQ*qIAL DEEARTMENI1 Cr. M. B.A No. 5226-P12023

Shakir Ullah Versus The State and another

Date of hearin 9.....12.01.2024.

Petitioner (s) by: Mr. Shahab Ullah, advocate. State by: Umar Farooq, AAG Complainant by: in person.

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JUDGEMENT

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TJAZ ANWAR.J Through instant bail application, accused petitioner Shakir Ullah seeks his release on bail in case FIR No. 1052 dated 03.09.2023 registered under sections 377 PPCI 50, 53 CPA, 2010 at Police Station Nowshera Kalan, District I Nowshera.

,o 2. In the instant case, accused petitioner has

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been charged for Child abuse and committing unnatural offence with Rehan, aged about 06 years, son of complainant Mst. Rodia.

3.Arguments of leamed counsel for the parties heard and record perused.

4.The complainant while reporting the maffer has stated that her minor son had gone out of house and on refurn told her about an unknown person who subjected him to unnatural offence. The minor was promptly taken to the hospital where his injury sheet was prepared and he was produced before the concerned Medical Officer for examination who, after examining the minor has fumished his report which shows clear bruises and minor anal tear at anal region coupled with a large tooth bite on left side of face of petitioner. In the last line of such report, the doctor has confirmed the sexual assault committed upon the child.

5 On, 05.09.2023, Rehman Ali, father of minor victim recorded his statement under section 164 Cr.P.C wherein stated that on his return home,

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he alongwith his minor son went in search of accused who pointed out the present accused petitioner to have committed the unnatural act. As such, accused petitioner was booked in the case for commission of the offence. Though such statement has been recorded with delay of 02 days, however, the delay has been properly explained that he was out of home in connection with earning his livelihood. Even otherwise, such delay is of no significance for the reason, had complainant any malafide or ill will to falsely implicate accused petitioner, they would have directly charged him in the FIR. In this case, honor and prestige of the complainant puty is involved and in such matters, false implication is out of question. Though the FSL report is in negative qua semen of human origin however, such report, in presence of positive medical report cannot be taken into consideration in

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favour of the accused petitioner, particularly when he himself has admiued the commission of offence in his statement under section 161 Cr.P.C and has been declared capable for performing sexual act by the doctor.

6.Learned counsel for the petitioner contended that no DNA test has been conducted in the instant case which is mandatory as per section 164-B Cr.P.C, thus in absence of DNA test, it is not establsihed that the offence has been committed by the petitioner. However, the language of section 164-B Cr.P.C is very much clear in this respect which reads as under:

d 1648. DNA test.- (1) Where an I offence under section 376, section 377 or section 3778 of the Pakistan Penal Code, 1860 (XLV of 1860), is committed or attempted to have been committed or is alleged to have been committed, Deoxynbonucleic Acid (DNA) samples, where practicable,

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shall be collected from the victim, with his or her consent or with the consent of his or her natural or legal guardian, and the accused during their medical examinations conducted under section 164l^, within optimal time period of receiving information relating to the commission of such ofTence."

The contents of section 164-B Cr.P.C say that DNA samples shall be collected, @ practicable. Even otherwise, non- conduct of DNA test will not affect the other evidence and at the most, can be considered a lapse on the part of the investigation officer. In the case titled "Shakeel and 05 others vs the State )' (PLD 2010 Sunreme Court-47) the Hon'ble Supreme Court held as under:

o'It is well-established by now that "omission of scientific test of semen status and grouping of sperms is neglect on the part of prosecution which cannot materially affect the other evidence."

7.Learned counsel for the petitioner further contended that accused petitioner is minor having 14 years of age and as such, he is to be treated as a juvenile and allowed bail as per the provisions of the Juvenile Justice System Act,20l8. Suffice it to say that his age, as per the card of arrest has been shown 16117 years, however, there is neither any report of the Medical Officer nor any School Leaving Certificate which could confirm the exact age of the accused petitioner so as to be dealt with in accordance with the provisions of Juvenile Justice System Act,2018.

/ 8. On tentative assessment, the data available on record prima facie connects the accused petitioner with the commission of a serious and heinous crime carrying punishment which falls within the ambit of prohibitlry clause of section 497

Cr.P.C disentitling him to the concession of bail.

Resultantly, this bail application stands dismissed.

JUDGE

Announced on;

Dated. 12.01.2024 /

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