' The petitioners stand charged under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No,520, dated 3-7-1994 lodged in Police Station Haripur City.
2. After arrest the petitioners applied for bail to the Ilaqa Magistrate who by his order, dated 13-7- 1994 released them on bail.
3. Respondent No,2 (complainant) was not contended with the order of the Magistrate and, therefore, he moved the Sessions Court, Haripur for the cancellation of the bail granted to the petitioners-accused. The learned Sessions Judge vide his order, dated 19-9-1994 accepted the bail cancellation application and cancelled the bail granted to the petitioners by the Magistrate.
4. The petitioners have challenged the vires and legality of the order of the learned Sessions Judge.
5. Mr. Saeed Akhtar Khan, Advocate learned counsel for the petitioners, Mr. Muhammad Ayub Khan, Advocate for the State and Haji Muhammad Iqbal, Advocate for respondent No,2 (complainant) present and heard. Record of the case perused.
6. At the very outset the learned counsel for the petitioners Mr. Saeed Akhtar Khan, Advocate submitted at the bar that the matter has been patched up between the parties and that the petitioners-accused have deposited a sum of Rs,1,25,000 in the bank in the account of Haji Muhammad Iqbal, Advocate learned counsel for respondent No,2 (complainant) and that this amount shall be paid to the complainant as soon as the petitioners are released on bail. He also stated that in this respect an affidavit has also been filed by the complainant in this Court today.
7. Haji Muhammad Iqbal, Advocate learned counsel for respondent No,2 (complainant) has produced the affidavit duly attested by the Oath Commissioner/Additional Registrar which has been placed on the file, which supports the contention of the learned counsel for the petitioners.
8. The learned counsel for the parties submitted that since the matter has been patched up, therefore, the petitioners should be released on bail. In this respect they placed reliance on case Atta Muhammad and others v. The State reported in 1988 MLD 2398 wherein his Lordship Mr. Justice Muhammad Munir Khan has held as under:-- "(4) I have considered the matter, Abdul Aziz the victim as well as his father Ghulam Sarwar are present in the Court. They state that they have entered into a compromise with the petitioners and are no more interested in their prosecution. The eye-witnesses have also sworn affidavit in favour of the petitioners.
(5) That being the position, I feel that no useful purpose would be served by keeping the petitioners in jail.
(6) For what has been said above, the petitioners are allowed bail in the sum of Rs,10,000 with one surety in the like amount to the satisfaction of Deputy Registrar of this Court."
9. I am afraid I cannot find myself in agreement with the dictum laid down by his Lordship Mr. Justice Muhammad Munir, mentioned above, because according to Schedule II of the Criminal Procedure Code the offence falling under section 377, P.P.C. Is not compoundable and, therefore, the petitioners cannot be released on bail on this ground.
10. However, on merits, the petitioners are entitled to be released on bail inasmuch as the medical report shatters the allegations of the complainant in toto. For the sake of convenience the relevant part of the medical report is reproduced as under:- "No tears seen around external splincter anus rounded normal shape.
' No stain seen on Shalwar swa bs taken one around the external splincter and two from the internal splincter.
' No mark of violence on buttock or around the region seen. However, the victim voluntarily (?) that intercourse was committed with him by force.
11. Needless to mention that according to N.J. Modi if the boy (passive agent) is subjected to sodomy who is not accustomed to sodomy, the following signs may be discovered in his medical examination:--
(a) Abrasions on the skin near the anus with pain in walking and on defaecation, as well as during examination. These injuries are extensive, and well-defined in cases where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused.
Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. In most of the cases brought before Modi, he had seen superficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the splincter ani. In some cases there may be bruising of the parts round about the anus, and the abrasions may extend into the anus beyond its splincter.
(b) Owing to the strong contraction of the splincter ani, the penis rarely penetrates beyond an inch, and consequently the laceration produced on the mucous membrance within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending horizontally inwards into the rectum. Modi had found lacerations internal to the splincter ani in several cases, but a typical triangular wound only in a few cases. These signs may not be perceptible in cases where the active agent has introduced his penis slowly and carefully without using force into the anus of the passive agent who is a consenting party.
(c) Blood may be found around the anus, on the perinaeum or thighs and also on the clothes.
(d) Semen may be found in or at the anus, on the perinaeum or on the garments of the boy too young to have seminal omissions, swabs must be taken and examined microscopically and serologically.
(e) Signs of a struggle, such as bruises, scratches, etc., on his person, if he is a grown up boy, and if he is not a consenting party.
(f) Finding loose foreign pubic hair on garments of a boy in whom pubic hairs have not appeared.
(g) Lubricant round about anus or on garments or recovered by swabs from rectum also constitute strong evidence of the perpetration of the crime."
' In this respect I am supported by case Ghulam Ilahi and others v. The State Criminal Miscellaneous No,179 of 1992, decided on 30-9-1992.
12. In view of the medical report, which contradicts the version of the complainant, I am of the view that reasonable grounds do exist for believing that the petitioners are not connected with the commission of the offence with which they have been charged and, therefore, they are entitled to be released on bail not as a matter of grace but as a matter of right.
13. In the circumstances this petition is accepted. The petitioners shall be released forthwith, if not wanted in any other case, provided they furnish bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Sub-Divisional Magistrate, Haripur. The S.D.M. Shall see that the sureties are respectable persons who belong to the settled areas of N.-W.F.P. And are men of means having sufficient property in their names.
14. The bail bonds shall be taken in duplicate and one of the same shall be sent to this Court alongwith the relevant documents i,e, property documents, photostat copies of the identity cards etc. Etc. For record.