1. Granted subject to all just exceptions.
2. Applicants Muneer alias Munawar A.I and Oshaq stand charged with commission of unnatural carnal intercourse with Abdul Qadeer.
1. The report of the incident was registered at Police Station, Ratodero as Crime No.82/96 on 30-5- 1996. Abdul Qadeer in his report stated that he was sitting at the lawn of High School, Ratodero alongwith Abdul Jabbar and Ishaque when at about sunset time the applicants took him with themselves on the pretext that they had some work with him. Abdul Qadeer was then taken by the applicants with them. At about 9-30 p.m., they reached the place known as Pir Mubarak Shah, where both the applicants tried to keep the complainant in their embraces, but on his resistance, Abdul Qadeer was given slaps and thereafter he was made to lie down on the ground by the applicants by force. His loin cloth was removed and both the applicants took turns to commit sodomy on him. Complainant raised cries which attracted Abdul Jabbar and Ishaque but when they came near, the applicants left the complainant and ran away. The complainant then narrated the incident to the witnesses. The witnesses brought him to his house. The maternal-uncle of the complainant Sobho was not available, therefore, the complainant waited for his arrival. Next day morning on the advice of his maternal-uncle, he went to the police station and lodged the report.
2. Police sent the complainant for medical examination and certificate. Applicants were arrested and challaned who are to face the trial for an offence punishable under sections 355, 377, 34, P.P.C. And 337-F(i), Qisas and Diyat Ordinance. The applicants did not succeed in their bail application before the Trial Court.
3. I have heard the learned counsel for the applicants and the learned Additional Advocate-General.
4. The learned counsel for the applicants took pains to argue that in this case delay of 14 hours in lodging of the report and non-presence of the eye--witnesses at the time of actual commission of the offence, makes this case a case of further inquiry and that, therefore, the applicants be released on bail.
5. I do not find much force in this contention as the explanation for delay is available in the F.I.R., itself.
6. The complainant's maternal-uncle, whose advice was necessary for the complainant before taking any action in such a serious situation involving honour and reputation of the family, was not present in home, and on his arrival, the report was immediately lodged on the next day.
7. The learned counsel for the applicants next laid stress on the fact that the rectal swabs, taken from the body of the complainant by the doctor, which were sent to Chemical Examiner for detection of semen, have been reported to be not having the stains of semen. This argument is also without substance, as semen could be present only in case of discharge, which is not necessary to prove the offence of carnal intercourse, as the explanation given in section 377, P.P.C., reads:----- "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." Besides, the Medical Officer in his certificate has clearly mentioned that due to passing of stools by the complainant before his arrival at the dispensary, and having washed his private parts, it was not possible that the rectal swabs will carry the stains of semen.
8. The last argument of the learned counsel for the applicants is that since some injuries on the person of the complainant have been certified by the Medical Officer to have been caused by blunt substance, it was a conflict between the ocular evidence and the medical evidence and that, therefore, the applicants were entitled to the grant of bail. Possibility of such superficial injuries being result of the force used against the complainant cannot be ruled out. Therefore, this argument does not carry much wait at this stage.
9. The next argument of the learned counsel for the applicants was that the finding of the Medical Officer was not clear as regards the commission of sodomy on the complainant as according to him, the word used by the Medical Officer i.e. "erectile" was not defined as penis in the certificate.
10. According to learned counsel for the applicants this "erectile" could mean a substance like fingers, pencils and other such things, therefore, there was no "penetration" and therefore, offence under section 377, P.P.C., was not committed. I do not agree with this contention of the learned counsel for the applicants. The word erectile" carries the meaning of "enlarging and hardening of the penis usually in response to sexual simulation", as defined in the Chamber's Dictionary. Besides, I find from the order of the trial Court on this very point, the trial Court had summoned the Medical Officer for explaining this position about his certificate. The doctor had appeared before the trial Court and had clarified that in his opinion his certificate was to the effect that sodomy had been committed and the penetration was proved.
11. This being the case, prima facie, from the medical evidence, it is clear that Abdul Qadeer was subjected to unnatural carnal intercourse.
12. Although the learned Additional Advocate-General appearing for the State has not opposed the grant of bail to the applicants, I find that evidence of the victim stands corroborated strongly by the evidence of the doctor as well as two other witnesses. Even otherwise, ordinarily in such cases the victims do not file false cases at the cost of their reputation and honour which in this part of the Province is considered as a stigma which is remembered for long time. The evidence of the victim alone has been held to be sufficient for conviction in such cases.
13. Dr. Altaf Hussain Abro, the Senior Resident Medical Officer of Taluka Hospital, Ratodero who has examined the victim in this case, on the examination of the victim had found that there were abrasions and contusions seven in number on different parts of the body of complainant including his hips. There was a laceration found at 6 O'clock position at the anus of the complainant and there was found dilation of the external sphincter of the victim which was tender on touch. The doctor had very clearly stated that some erectile substance had been introduced into the anus of the victim. At this stage, therefore, I do not find that doctor in his certificate has left any room for interpretation of his certificate in respect of the absence of commission of the sodomy.
14. The applicants stand charged with the offences punishable under sections 355, 377, 34, P.P.C. And 337-F(i), Qisas and Diyat Ordinance and section 377, P.P.C., carries the punishment of imprisonment for life: No grounds are made out for exercising the discretion of grant of bail in fawour of the applicants, therefore, I consider that the applicants' applicationfor bail merits no consideration and the same is, therefore, dismissed.