The petitioners seek confirmation of ad-interim pre-arrest bail granted to them by this Court on 2.6.2008 in case FIR No, 97/2008 dated 27.3.2008, registered under Sections 377, 367/A PPC at Police.
Station City, Tehsil Kamalia District Toba Tek Singh.
2. Precise allegations against the petitioners are that both of them on 23.3.2008 had enticed away complainant's son Usman and had taken him to some deserted place and thereafter had committed sodomy with him.
3. Learned counsel for the petitioners submits that there is an unexplained delay of four days in lodging of the FIR, He further submits that a false and fabricated case has been registered against the petitioners due to enmity, as a matter of fact to such occurrence has even taken place. He further submits that medical examination, of the victim, was conducted three days after the occurrence. Had the story narrated in the FIR been true, then there was no reason whatsoever on the part of the complainant to get his son medically examined three days after the occurrence, therefore, the entire story mentioned in the FIR is absolutely false. He further submits that under the circumstances, petitioner's case is that of further inquiry into their guilt. He has relied upon (PLJ 2007 Criminal Cases (Lahore) 130).
4. Learned counsel for the complainant has vehemently opposed confirmation of the bail application of the petitioners and has submitted that the petitioners have committed a very heinous offence of sodomy and they are not entitled to the concession of bail.
5. Learned DPG also opposes bail application of the petitioners and submits that the report of the chemical examiner is absolutely insignificant for the reason that even if at all chemical examiner had opined that the report is negative, even then it is immaterial for the reason that semen stained swa bs were sent to the chemical examiner three days after the occurrence, which, are absolutely inconsequential as semen cannot stay in the anal canal for such a long time. There is absolutely no enmity between the parties and there was no reason for the complainant to falsely implicate the petitioners with the commission of said offence. He further submits that the petitioners have committed a very heinous offence of sodomy with the child which is unpardonable offence. He also refers to the eye-witness account given by Muhammad Farooq and Waseem, who had witnessed the occurrence and they too have no enmity with the petitioners to falsely implicate them with the commission of said offence. Moreover, statement of the victim has also been taken into account, who had clearly stated that it was Kashif, Petitioner No, 2, who had committed sodomy with him. As regards Petitioner No, 1, Muzammal, he has also aided the offence. He lastly .submits that case of the petitioners falls in the prohibitory clause of Section 497 Cr.P.C., therefore, they are not entitled to the concession of bail.
6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record. There is no denying the fact that the petitioners have been nominated in the FIR with specific role. Statement of the victim is also significant in this respect, wherein, he directly implicates both the petitioners with the commission of said offence, which was corroborated by two eye-witnesses of the occurrence Muhammad Farooq and Waseem, who also fully involve the petitioners with the commission of said offence. Above all, there is nothing on record which could show that enmity exists between the parties and due to that they have been falsely implicated. There was absolutely no reason whatsoever for the complainant as well as the victim to falsely implicate both the petitioners. As far as the report of the chemical examiner is concerned, which was obtained after three days of the occurrence, which becomes insignificant and inconsequential for the reason that swabs for the detection of semen were collected three days after the occurrence and as per medical jurisprudence semen cannot remain in anus for more than 24 hours, as human beings tend to pass stool and the germs as well as semen vanishes from the anal canal with the passage of stool, therefore, report of the chemical examiner is absolutely insignificant in this regard. Reliance can be placed on the report of the medical officer who had seen tenderness around anus of the victim and as per his report the victim felt pain around anus hole and he had also opined in his report that tenderness is present which is sufficient evidence to prove the guilt of the petitioners.
7. As far as the case of Muzammal is concerned, he had aided the offence and is equally liable to the commission of said offence, therefore, I do not find any reason in confirming the ad-interim pre-arrest bail already granted to them by this Court, hence the present petition stands dismissed.