RIZWAN vs STATE
This post-arrest bail application arose out of an FIR registered under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with Section 337 of the Pakistan Penal Code 1860, wherein the petitioner was accused of forcibly subjecting a fourth-class student to sodomy in a field while an armed co-accused guarded the scene. The primary legal issue before the Lahore High Court was whether the petitioner was entitled to post-arrest bail on the ground that the medical evidence contradicted the ocular account. Upon perusal of the record, the High Court observed that although the FIR carried a direct and positive assertion of sodomy, the medico-legal examination conducted on the same day revealed no marks of violence on the victim's body. Furthermore, the Chemical Examiner's report confirmed that the anal swabs were not stained with semen. Concluding that the direct conflict between the ocular account and the medical evidence rendered the petitioner's culpability a matter of further inquiry, the High Court accepted the application and admitted the petitioner to post-arrest bail.
- Whether a conflict between ocular allegations of sodomy and negative medical evidence renders a case fit for further inquiry under bail jurisprudence?
- Can an accused charged under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 be granted post-arrest bail if anal swabs test negative for semen and no bodily marks of violence are found?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 337, Pakistan Penal Code 1860
ORDER
This is bail after arrest application in case FIR No, 220/2003, dated 11.8.2003, under Section 12 Offence of Zina (Enforcement of Huddod) Ordinance, 1979, read with Section 337 P.P.C. of Police Station Kallur Kot, District Bhakkar.
2. According to the prosecution allegations on 11.8.2003 at about 2.00 p.m. while Asad complainant who is student of 4th class was on way to his house, the petitioner alongwith his co-accused Saeed who was armed with air gun accosted him and forcibly took him into the "Bajra Crop". The petitioner felled the complainant on the ground and after removing his shalwar subjected him to sodomy, whereas, Saeed co-accused stood as a guard. On the alarm raised by the victim, his bother Muhammad Arshad and Sabir Hussain PWs were attracted and seeing them, the petitioner made good his escape.
3. It is contended on behalf of the petitioner that in the FIR a positive allegation had been levied that the petitioner had subjected him to sodomy, whereas, in the medico legal report, no marks of violence were found on the person of the victim and his swab not to the Chemical Examiner for detection of semen, where also found not to be stained with semen and therefore, the medical evidence in this case is in-conflict with the ocular version and the case of the petitioner has become a matter of further inquiry.
4. In the F.I.R. the victim had levied positive allegations that the petitioner had subjected him to sodomy. The victim was medically examined on the same day, but the Medical Officer did not observe any mark of violence on any part of the victim's body and anal swabs were also taken and sent to the office of Chemical Examiner for detection of semen and the report of the Chemical Examiner indicates that they were not stained with semen, therefore, the ocular version and the medical evidence are in conflict with each other which makes the case of the petitioner a matter of further inquiry and as such, he is admitted to bail in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court.