SALEEM AKHTAR, J.---This is a sufficiently old matter on record in which notice to State was issued as ordered earlier. The petitioner was convicted by the Additional Sessions Judge, Mianwali, under section 377, P.P.C. And section 12 of Ordinance VII of 1979. In appeal the Federal Shariat Court partly accepted it and sentence under section 12 of Ordinance VII of 1979 was set aside while sentence under section 377, P.P.C. Was reduced from 7 years' R.I. To 5 years' R.I.
2. The action was initiated on the F.I.R. Lodged by Ghulam Muhammad on 8-11-1986 alleging that his minor son Sarfraz Ahmed, aged 7 years, had gone for purchasing Samosa but as he did not return for sufficiently long time, he closed his shop and along with Abdul Quddus and Master Abdul Hayee who were present at his shop, went in search of his son. When they reached in Koocha Malik Muzaffar situated on the back side of Tawl of Niadad Khan near the house of Malik Ahmed Khan, Advocate, they heard the cries of Sarfraz from that house on which they peeped through the doors of that house and saw that the petitioner who was known to them previously, was committing sodomy with his son who was crying. They knocked the door on which petitioner put on his shalwar and succeeded in running away through the door of the Baithak of that house. The report was lodged on 8-11-1986 at 7-30 p.m. After a delay of about 76 hours. The only explanation given was that the relatives of the petitioner were pressurizing and beseeching the complainant for not lodging the report.
3. . Mr. Muhammad Bilal, the learned counsel for the petitioner, contended that Ghulam Muhammad P.W. 8, father of the victim has connection with the police as admitted by him and the petitioner has falsely been implicated due to enmity with the police. Besides this plea the learned counsel emphasised that delay in lodging the report has not been explained and creates doubt in the prosecution case. The prosecution has relied on the medical report and the report of the Chemical Examiner. The doctor has stated that swabs were taken from inside and outside the anal canal of Sarfraz and sent for chemical examination. The Chemical Examiner certified that the swa bs were stained with semen. Attacking the veracity of this piece of evidence the learned counsel pointed out that sodomy was alleged to have been committed on 5-11-1986 but the report was lodged and medical examination carried on 8-11-1986 after a delay of more than 76 hours during which period due to bowel action by the alleged victim there was no possibility of the semen remaining in the anal canal. The learned counsel referred to Taylor's Principles and Practice of Medical Jurisprudence, edited by A. Keith Mant where the following observation was made:- Specimens to be taken in cases of alleged anal intercourse: As in the medical investigation in cases of rape, the taking of valid specimens is the responsibility of the examining doctor. The choice of specimens will of course vary with the details of the allegations and with the time interval that has elapsed between the alleged incident and the medical examination. The following list is neither exclusive nor is it mandatory, and it must be remembered that seminal traces within the bowel are difficult to identify if more than 24 hours have passed since the alleged act, and are also lost in the majority of cases if there has been a bowel action between the time of the alleged incident and the medical examination. Wiping or washing of the anal verge contamination by semen or lubricant."
The learned counsel also referred to an unreported judgment of the Federal Shariat Court, Muhammad Anwar v. The State, Criminal Appeal No. 93/1/87 where in similar situation it was observed as follows:- "So far the shalwar is concerned it appears highly improbable that for all :hose days the complainant was wearing the same shalwar and that it was stained with the semen of the accused. Similar appears to be the position about the result of the anal swabs. It cannot be said with certainty that semen could remain in the anal canal for such a long period when the complainant might have passed stools on a good number of occasions. According to Medical Jurisprudence by Modi and Dr. S. Sadiq Hussain spermatozoa are disintegrated quickly in presence of organic matter and moisture but in cases sperms have been detected in folds inside the rectum and escaped contact with organic matter. The opinion in this connection is, however, not quite definite."
The learned counsel also contended that considering the location of the' building and the room in which the alleged offence is stated to have been committed it was not possible for the complainant to have heard the cries of victim Sarfraz or peeped into the door as stated in the F.I.R.
4.These contentions among others require consideration. We, therefore, grant leave.