Petitioner seeks post arrest bail in case FIR No, 127/2008 dated 26.3.2008 under Section 376 PPC registered at Police Station Phalia, District Mandi Baha-ud-Din. Precise allegations against the petitioner are that he had enticed the minor daughter of the complainant Hajra and committed unnatural offence with her.
2. Learned counsel for the petitioner submits that there is a delay of three days in sending the swa bs to the Chemical Examiner, which are insignificant and inconsequential. Accused is juvenile and deserves a lenient view. He further submits that enmity exists between both the parties and the instant FIR is registered against the petitioner as a counterblast to FIR No, 31/2008 in which complainant and Muhammad Siddique PW are accused persons. Swabs taken from the anus of the victim were not sent to Serologist for grouping, therefore, it is not surely known as to whom the said swa bs belonged to. Learned counsel for the petitioner has referred to MLR and has tried to establish the fact that there is no evidence of penetration and if penetration has not taken place then the offence under Section 376 PPC is not constituted.
3. Learned DPG opposes the bail application and submits that it is promptly lodged FIR. Petitioner is nominated in the FIR with a major role. Petitioner has been held guilty in the investigation. The learned DPG further submits that eye-witnesses Mehdi Khan and Muhammad Siddique fully involve the petitioner with the commission of the said offence. Hajra, the victim, also implicates the petitioner with the said offence. Learned DPG finally argued that the petitioner has committed a heinous crime of committing sodomy with a minor girl.
4. I have heard both the learned counsel and have perused the record.
5. Petitioner is, no doubt, nominated in the FIR with a specific role and committed sodomy with the victim but I have very carefully examined the MLR which reveals the fact that there is no swelling or tear and laceration found around the anal hole. Doctor had also opined that no blood or discharge was found there. As far as the report of Chemical Examiner is concerned, which reveals the fact that the swa bs taken from the anus of the victim are found stained with blood and semen, I am of the considered view that in case of sodomy, conducting of medical examination after two days becomes insignificant and inconsequential for the reasons that it is practically not possible not to pass stool for a normal person for two days. In the instant case medical examination was conducted two days after the occurrence but even then there was no medical evidence which could prove the fact that penetration had taken place. Had he penetration taken place then, I am sure, there would have been tear, swelling or laceration in or around the hole of anus but in the instant case there is no such thing in the medical report, therefore, it is established beyond any shadow of doubt that no penetration has taken place and if no penetration has taken place then offence under Section 376 PPC is not constituted.
6. As regards the eye-witnesses account, it seems unnatural for the reason that it is not possible that if sodomy is being committed with a minor girl eye-witnesses would simply watch the occurrence and would not apprehended the accused or at least reprimand him, therefore, story narrated in the FIR seems to be highly doubtful and eye-witnesses account seems absolutely unbelievable.
7. Under the circumstances petitioner's case falls within the ambit of further inquiry. I, therefore, admit him to bail subject to furnishing of bail bonds in the sum of Rs, 50,000/- (rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the learned trial Court.