' Heard.
2. Ghulam Raza son of Muhammad Inayat Caste Gondal and Muhammad Amjad son of Mittha, Caste Muslim Sheikh, both residents of Kattowal, Tehsil Malikwal, District Mandi Bahaud Din, petitioner, have applied for their post-arrest bail in the case bearing F.I.R. No,48 of 2003, dated 1-3- 2003 which stands registered against them under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, read with section 377, P.P.C. With Police Station Malikwal, District Mandi Bahaud Din.
3. The allegation against the petitioner was that on 26-2-2003 at about 9-00 a.m. They carried Munawar Iqbal son of Muhammad Sher, caste Gondal resident of Fatowal in the field on the pretext of easing themselves and there at pistol point they committed the sodomy turn by turn. However, on hue and cry of the victim Muhammad Arif and Allah Bakhsh attracted to the spot. There are efforts to patch up the matter but when the efforts failed Sardar got the instant case registered on 1-3-2003.
4. Learned counsel for the petitioners mainly argued that this case was registered after the delay of three days without any justification: that the medical examination was also conducted with an unexplained delay and the medical report does not corroborate with the statements of prosecution witnesses and actually it negates the prosecution case as no scratch or marks of violence were seen on the body of the victim, even the report of Chemical Examiner is negative. He added that during the investigation it was found that no sodomy was committed by the petitioners that they are no more required by the police for any further investigation nor they are previous convict, and that there is no apprehension of their abscondence if the bail is allowed to them, which have been opposed by the learned State counsel but he admitted that the medical evidence is not supporting the prosecution case.
5. There are two parts of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979; the first part requires kidnapping or abduction of any person and the second part requires that the person abducted may be subjected to unnatural lust of any person and to connect both these parts the word, "in order" has been used which means that the absence of any part the offence under section 12 of the Ordinance ibid would not be complete for example if the victim is not subjected to unnatural lust and the first part is complete then it would be a mere case of carrying away the victim and it would not attract the provision of section 12 of the Offence of Zina Hudood Ordinance VII of 1979.
' Under section 377, P.P.C. The offence of unnatural lust is complete when there is an act of carnal intercourse against the order of nature with any man, woman or animal.
The point for determination in both the offences as mentioned above is as to how the said offences can be proved, certainly the oral witnesses including the statement of the victim must have corroboration from the medical evidence. If the report of Medical Officer and, thereafter, the report of Chemical Examiner are negative, it would mean that the oral witnesses failed to prove the allegation of unnatural lust or commission of carnal intercourse against the order of nature.
6. Here in the instant case the medical evidence negates the prosecution case, therefore, even at the bail stage the benefit of such situation would go to the accused. The F.I.R. Was lodged with some delay, the medical examination was conducted also with delay, therefore, these aspects also force to believe that this is a case of further inquiry.
7. As a consequence of the discussion above Ghulam Raza and Muhammad Amjad petitioners are admitted to bail subject to their furnishing surety bonds in the sum of Rs,100,000 (rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.
Petition is hereby accepted.