MUHAMMAD ASHFAQUE vs STATE
The petitioner sought post-arrest bail in a case registered under Section 367-A of the Pakistan Penal Code 1860, involving allegations of enticed abduction, physical torture, and sodomy. The core legal question revolved around whether the case warranted further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, particularly concerning the delay in lodging the FIR, the delayed medical examination, and the doubtful nature of the positive chemical examiner report regarding the presence of semen after four days. The Lahore High Court held that since expert opinion established semen can only stay in the anal canal for 24 hours, a medical examination conducted four days later renders the chemical examiner's positive report doubtful and procured mala fide. Consequently, the Court admitted the petitioner to post-arrest bail, establishing the principle that unexplained delayed medical examinations and scientifically improbable forensic findings in sodomy cases can bring the matter within the scope of further inquiry.
- Whether post-arrest bail can be granted when the chemical examiner's report regarding the presence of semen is rendered doubtful due to a delayed medical examination?
- Does a delay of four days in conducting a medical examination in a sodomy case make the medical evidence insignificant and inconsequential?
- Whether the case of the accused falls under further inquiry when expert medical opinion contradicts the duration of semen retention in the anal canal?
- Section 367-A, Pakistan Penal Code 1860
ORDER
The petitioner seeks post arrest bail in case FIR No, 28/2008, dated 26.1.2008, registered under Section 367-A PPC at Police. Station Sadar Sumundari District Faisalabad.
2. Precise allegations against the petitioner are that he on 23.1.2008 had enticed away son of the complainant Muratab Ali, to nearby fields and had subjected him to physical torture and had committed sodomy with him.
3. Learned counsel for the petitioner submits that there is an unexplained delay of three days in lodging of the FIR, therefore, possibility of deliberations cannot be ruled out. He further submits that a false case has been registered against the petitioner due to mala fide of the complainant, in fact no such occurrence had taken place. He has also referred to the affidavits sworn by the eye- vvitnesses, who deposed that the petitioner has not committed offence under Section 367-A. PPC, therefore, the case of the petitioner is that of further inquiry into his guilt. He has relied upon caries reported as Allah Bakhsh Vs. Nazar Hussain Shah and, another (1979 SCM R 137) and Ashiq Hussain and another Vs. State (1999 PCr.LJ 916).
4. Learned DPG has opposed bail application of the petitioner and submits that complainant's son had suffered five injuries on his body caused by the petitioner while subjecting him to sodomy. The complainant had deposed favour of the petitioner because of fear and threats extended to him by the petitioner. Furthermore, the petitioner remained PO for a period of three months and report of the chemical examiner regarding commission of the said offence is positive.
5. I have heard the learned counsel for the petitioner as well as learned DPG and have also perused the record. The moot point in the instant case is that the report of the chemical examiner regarding commission of offence is positive which casts doubt in one's mind for the reason that occurrence had taken place on 23.1.2008 and his medical examination was conducted on 27.1.2008. As a matter of fact had the occurrence taken place then there was no reason on the part of the complainant not to get his son medically examined on the same day, as he had suffered injuries also.
6. There is another fact, which makes the case doubtful that semen swabs taken from the anus of the victim four days after the occurrence, now the question arises as to whether can semen sustain in the anal canal for four days? This Court had sought assistance from the Chemical Examiner, who submits that in case of sodomy semen can stay only for 24 hours in the anus and with the passage of stool the germs or the semen vanishes. In the instant case, the victim was medically examined four days after the occurrence, therefore, there is no possibility of semen or germs to stay for four days in the anal canal when the victim must have passed stool many a times in four days. In such like cases, medical examination is insignificant and inconsequential when medical examination is conducted four days after the occurrence, therefore, the report submitted by the chemical examiner in this respect seems highly doubtful and it appears that the report is procured by the complainant malafidely.
7. Under the above mentioned circumstances, case of the petitioner is that of further inquiry into his guilt. I, therefore, admit the petitioner to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 50,000/- with two sureties in the like amount each to the satisfaction of the learned trial Court/Illaqa Magistrate.
Petition stands disposed of.