Having been involved in case registered vide F.I.R . No,14 under section 377, P.P.C. Read with section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 13-3-1999 in Police Station Lora, the accused-petitioner moved an application for his release on bail in the Court of learned Judicial Magistrate but his application was dismissed vide order dated 12-4-1999. He then moved the Court of learned Sessions Judge, Abbottabad for his release on bail but his application was dismissed vide order dated 29-4-1999. The petitioner has now moved this Court for the same purpose.
2. Brief facts of the case are that complainant Naveed who is aged about 8/9 years and is a student of Religious Institution known as 'Jamia Ghosia Ghambeer'. On 13-3-1999 early in the morning at 'subo-azan-vela', the minor Naveed woke up and was preparing himself for reciting 'fajarazan' when in the meanwhile the accused-petitioner who is religious teacher in the said institution caught hold of him and took the complainant to his room where he committed sodomy upon the complainant. The accused-petitioner also threatened the victim to keep quiet else he would be killed. Subsequently the victim narrated the occurrence to his fellow-students who caught hold of the accused and handed him over to police.
3. Mr. Muhammad Shafique Awan, Advocate, the learned counsel representing the accused- petitioner argued that occurrence took place at 'subo-azan-vela' but the report was lodged at 11- 00 a.m. The delay in lodging the report has not been explained. He further argued that the medico- legal report does not support the case of prosecution. Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not attracted and it shall be seen during the trial whether the said section of law is applicable in the case or not which makes the case of the accused-petitioner that of further inquiry.
4. On the other hand, Mr. Mazhar Akram, Advocate, the learned counsel representing the State argued that age of victim is only 8/9 years. There is no or enmity between the parties. The report of the Chemical Examiner is in positive and thick semen from the Shalwar of the accused were found.
He further argued that even if no penetration took place but the penetration into the thigh of the victim amounts to carnal intercourse. He placed reliance on Muhammad Ali and another v. The State PLD 1961 Dacca 447.
5. I have heard the learned counsel for the parties and perused the record.
6. The occurrence took place at 'subo-azan-vela'. The minor victim who is student of a religious institution was preparing to recite 'Azan'. He was taken by the accused-petitioner to his room and was subjected to sodomy. He was also threatened to keep quiet else he would be killed.
Subsequently the victim, narrated the occurrence to his fellow-students, namely, Babar Idris, Ali Muhammad, Ismat and others who asked and inquired from the accused where the accused admitted his guilt. They caught hold of him and handed him over to police. The police station is situated about 10 kilometres away from the place of occurrence. It is a hilly track and it takes time to reach the police station. The incident as mentioned above took place early in the morning at 'azan vela' when no transportation was available. Moreover, the victim is a minor boy of 8/9 years of age, he could not himself rush to the police station being minor in the very early hours of the day.
He needed the help and assistance of his fellow-students to whom he immediately narrated the episode and thereafter, the report was lodged, therefore, there is no delay in lodging the report.
7. There is no enmity between the parties so as to make such allegations which can also stigmatize the complainant for his all the life to come. Therefore, it is not a case of false implication. The medico-legal report shows that there were no bruises or marks of violence and no injuries were present on the body of the victim but a person can be guilty under section 377 of the Penal Code even though there was neither actual penetration per anus in a legal sense. Where accused catching hold of a young boy, threw him down on the ground with his face upwards, formed a cavity between his legs and then entered his male organ into the cavity and after discharge of semen got up, it was held in case "Muhammad Ali and another v. The State PLD 1961 Dacca 447-- "that the accused was guilty of offence under section 377, Penal Code, 1860. For constituting offence under the section, penetration into anus would not be essential in every case. The entry of the male organ of the accused into the artificial cavity between the thighs of the boy amounted. To penetration and to carnal intercourse. There was carnal intercourse as the visiting organ was enveloped by the visited organs namely the thighs of the boy." The Doctor at the time of medical examination had obtained swabs from the anterior for chemical examination of semen. The said swa bs were sent to chemical analyist whose report is in positive.
8. I, therefore, see no reasonable grounds to enlarge the petitioner on bail. His bail application is, therefore, dismissed.