On 14-5-1991" at Police Station'- Missan,, Jhang, a case under, section 317, P.P.C. Read with section 11 of the Offence of Zina (En forcemeat of Hudood) Ordinance, 1979 was registered against 'Hakim Khan,. Irshad, Hussain and ZuIfiqar acussed at the instance of Sultan complainant.
2. It was alleged in the F.I.R. That on 8-5-1991 the complainant's son Muhammad lqbal aged about 14 years was playing with his friends when the abovementioned three accused came there and took him along on the pretext of showing him the flood water at Peo Mara Bridge. On reaching there Hakim Khan and Irshad Hussain committed sodomy with him while Zulfiqar accused who was armed with pistol kept watch ,over them. The occurrence was stated to have been witnessed by Muhammad, Muhammad Bukhsh and Muhammiad Afzal, P.Ws.
3.Hakim Khan accused, petitioner herein, who was arrest on 17-6-1991, has applied for his post- arrest bail.
4. I have heard the parties! Learned counsel and have also gone through the record.
5. The occurrence took place on 8-5-1991, the F.I.R. Was lodged on 14-5-1991, thus there is a delay of about six days which, according to the learned counsel for the petitioner, has not at all been explained in the F.I.R. Muhammad and Muhammad Aslam (mentioned as Muhammad Bukhsh in the F.I.R.) the two eye-witnesses named in the F.I.R. Have sworn affidavits before the investigation officer that they did not know anything about the occurrence nor had they seen the incident as alleged in the F.I.R. Two out of the three eye-witnesses, therefore, do not support the prosecution case.
6. On 13-6-1991, a supplementary statement of the complainant was recorded according to which Zulfiqar accused was not present at the time and place of occurrence and only Hakim and Irshad accused had committed sodomy with Muhammad lqbal victim at Thatta Chabana Bridge. The victim also made a similar statement and disclosed that the occurrence was witnessed by Anwar and Sikandar P.Ws. The learned counsel for the petitioner has maintained that this significant departure from the prosecution case, as contained in the F.I.R., is indicative of the fact that the allegations against. The petitioner and his co-accused are false and reasonable grounds do not exist to believe that the petitioner had committed the crime charged against him.
7.' Perusal of the record reveals that the victim was medically examined firstly on 10-5-1991, according to which he had suffered three simple injuries on his person. His anal examination was not conducted. The injuries seen on his person were very insignificant. He was again medically examined on 14-5-1991. The said medical examination revealed that he had no visible injuries on his person but he felt pain on stretching the anal sphincter and that there was a healed abrasion 0.5 c.m. x 0.5 c.m. On the lower side of parianal region. The medico-legal report further shows that three anal swa bs of the victim were taken and sent t9 the Chemical Examiner for report. The Chemical Examiner's report is positive. The learned counsel for the State submitted that the first medical examination conducted on 10-5-1991 was fictitious and the victim had never been produced before any Medical Officer on. That day.. At this stage, I do not want to indulge in the controversy as to whether the victim had been medically examined on 10-5-1991 or not and therefore, for the present, the MLR prepared on that day is excluded from consideration. The second examination was conducted six days after the occurrence and it is strange that the anal swabs of the victim were found to be stained with semen, Ordinarily traces of semen are not detectible in the anal canal after 24 hours especially when the victim has passed stools. The learned counsel for the, petitioner in this regard referred to Taylor's 'Principles and Practice of Medical Jurisprudence' and maintained that the whole medical evidence had been fabricated to falsely implicate the petitioner with whom the complainant party had strained relations. The learned counsel for the State did not have any satisfactory answer to the question as to how after six days of occurrence the anal swa bs were found to be stained with semen.
8. In these circumstances when there is an inordinate delay of about six days in lodging the F.I.R., two out of three eye-witnesses' have not supported the prosecution case, the complainant and the victim themselves have admitted that Zulfiqar initially named as an accused was not present at the time and place of occurrence, new eye-witnesses and new place of occurrence have been introduced through the supplementary statements of the complainant and the victim recorded on 13-6-1991 and the medical evidence about anal swabs was of a dubious character, I am of the opinion that reasonable grounds do not exist to believe that the petitioner had committed the crime charged against him. He, therefore, is entitled to the grant of bail and is admitted to bail in the sum of Rs.20,000 (Twenty thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Jhang.
9. The observations made in this order are tentative and therefore the learned trial Court should not. Be influenced by them while deciding the case.
M.B.A./H-19/L