' Heard.
' This is an application for bail in case F.I.R. No,147/95 registered at Police Station Pacca Laar on 11-7- 1995 at 9-00 a.m. Under section 377, P.P.C. This F.I.R. Was lodged by Hafiz Muhammad Bakhsh son of Khalil Ahmad caste Chandia resident of Village Kotla Dolat situated at a distance of 3 kilometres froin the police station towards its north. The occurrence had taken place on 8-7-1995 at about 8- 30 p.m. According to the complainant-victim, he was coming back from Basti Ladhani on a bicycle after seeing his sister and when he was passing by the Khandars, the present petitioner Muhammad Anwar son of Ghulam Nabi who was armed with a pistol and another person armed with a hatchet whose name the complainant did not know stopped him and asked him to lie down otherwise he would be done to death with pistol and hatchet and buried in the Khandar. It was then that Muhammad Anwar forcibly subjected him to sodomy while his co-accused armed with hatchet kept guard over him. He raised alarm out of pain whereupon Muhammad Anwar tied his mouth with a cloth. All of a sudden Peer Bakhsh son of Haji Bakhsh, a maternal-uncle of the victim, and Karim Bakhsh son of Elahi Bakhsh, his Chacha Zaad, who were following him also reached there from Basti Ladhani on a bicycle and saw the occurrence. They tried to apprehend the accused but they succeeded in slipping away. The complainant was then brought to the village by Peer Bakhsh and Karim Bakhsh. He narrated the occurrence to them. Elahi Bakhsh, the uncle of the victim with whom he lived, was not present in his house. On the next day, Anwar etc. Remained requesting them not to report the matter to the police: On the return of Elahi Bakhsh (on 11-7-1995), the victim accompanied him to the police station for lodging the report.
2. The bail application moved by the petitioner were dismissed by the A.C., Liaquatpur on 15-10- 1995 and by the Additional Sessions Judge, Liaqatpur on 30-11-1995 respectively. He has, therefore, come to this Court.
3. I have today heard the learned counsel for the petitioner and the learned State Counsel and have also carefully gone through the police record. The learned counsel for the petitioner has contended before me that three days' delay in lodging the F.I.R. Has not at all been satisfactorily explained and that the medico-legal examination of the victim Hafiz Muhammad Bakhsh carried out on 11-7-1995 can also be of no avail to him because the Medical Officer has not given a definite finding with regard to penetration etc. And anal tears could be the result of the examination through photocopy. According to him, the report of the Chemical Examiner that the anal swabs were stained with semen shall also have to be ruled out of consideration because the possibility of finding semen inside the anus was very remote and the semen could not remain in the anus after 24 hours as the same would be washed away after the complainant had eased himself, as has been held in Muhammad Akram and others v. The State 1995 M LD 950.
4. The learned State Counsel has, on the other hand, maintained that the petitioner was nominated in the F.I.R. And the offence with which he is being charged falls within the prohibitory clause and as such he has no good case for bail.
5. A glance through the police file puts me at guard and constrains me to observe that the prosecution version with regard to the occurrence has to be viewed with caution. There is absolutely no plausible explanation with regard to three days' delay in lodging the F.I.R. According to the version of the complainant party put forth before the respectable and elders of the village in a Panchayat, it was not only Muhammad Anwar, the present petitioner, but, also Iqbal, Siraj and Abdul Rehman who had committed unnatural offence with the victim. No such claim was made by the victim in the First Information Report. The police inspected the site and there were no signs of lying down or scuffle on the ground. Above all, in the opinion of Alfred Swaine Taylor, MD, FRS expressed by him at page 96 of his book Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition and reproduced in the judgment cited above i,e, 1995 M LD 950 semen traces within the bowel are difficult to identify if more than 24 hours have passed since the alleged act, and 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 will also tend to destroy any anal verge contamination by semen or lubricant.
6. In a similar case where there was a delay of two days in reporting the matter to the police and no marks of violence were found on the person of the victim re: Niamat Ali alias Deena v. The State reported as 1989 M LD 3978 the accused was admitted to bail by his Lordship Mr. Justice Ijaz Nisar.
7. This being the position, the petitioner has obviously a good case for bail. He is, therefore, accordingly enlarged on bail subject to his furnishing a bail bond in the sum of Rs,1,00,000 with two sureties in the like amount to the satisfaction of the A.C./Duty Magistrate, Liaqatpur.
8. It may, however, be mentioned here that the observations made by me in this order are tentative and they will not in any manner, affect the decision of the case on merits.