MUHAMMAD ASHFAQUE vs THE STATE
This matter arises from a petition for post-arrest bail filed by Muhammad Ashfaque in connection with case F.I.R. No. 28 of 2008 registered under Section 367-A of the Pakistan Penal Code 1860 at Police Station Sadar Sumundari, District Faisalabad, involving allegations of physical torture and sodomy. The core legal question concerns whether the petitioner is entitled to post-arrest bail given the delay in the F.I.R., the timing of the medical examination, and the evidentiary value of a positive Chemical Examiner report regarding semen detected four days after the alleged occurrence. The Lahore High Court held that the case calls for further inquiry into the petitioner's guilt and admitted him to post-arrest bail. The key principle laid down is that where medical opinion indicates semen cannot survive in the anal canal beyond twenty-four hours and the medical examination is conducted four days post-occurrence, a positive chemical examiner report becomes highly doubtful and insignificant, bringing the case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898.
- Whether a positive chemical examiner report regarding semen detection loses its significance when the medical examination is conducted four days after the alleged occurrence of sodomy?
- Can semen survive in the anal canal for a period of four days according to medical science?
- Does a delay in lodging the F.I.R. and conducting a belated medical examination make the case one of further inquiry entitling the accused to post-arrest bail?
- Section 367-A, Pakistan Penal Code 1860
ORDER
' KHURSHID ANWAR BHINDER, J.--- The petitioner seeks post-arrest bail in case F.I.R. No,28 of 2008, dated 26-1-2008, registered under section 367-A, P.P.C. 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 F.I.R, therefore, possibility of deliberations cannot be ruled out. He turther 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- witnesses, who deposed that the petitioner has not committed offence under section 367-A, P.P.C, therefore, the case of the petitioner is that of further inquiry into his guilt. He has relied upon cases reported as Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCM R 137 and Ashiq Hussain and another v. State 1999 PCr.LJ 916.
4. Learned D.P.G. 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 in favour of the petitioner because of fear and threats extended to him by the petitioner. Furthermore, the petitioner remained P.O. 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 D.P.G. 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 vanish. In the instant case, the victim 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 each in the like amount to the satisfaction of the learned trial Court/Illaqa Magistrate.