Muzamii And Another vs The State
This matter concerns a petition for the confirmation of ad-interim pre-arrest bail filed by two petitioners accused of sodomy under Sections 377 and 367/A of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to pre-arrest bail given the allegations of a heinous offence, the delay in lodging the F.I.R., and the evidentiary value of the medical and chemical examination reports. The Court dismissed the petition, holding that the petitioners were not entitled to the concession of bail. The Court reasoned that the victim’s statement, corroborated by two eyewitnesses, provided sufficient grounds to implicate the petitioners. Furthermore, the Court held that the delay in medical examination and the negative or inconclusive nature of the Chemical Examiner's report did not undermine the prosecution's case, as the medical officer’s observation of physical tenderness around the victim's anus provided sufficient evidence of the offence. The principle laid down is that where specific allegations are corroborated by eyewitness accounts and physical medical evidence, the delay in procedural steps like chemical analysis does not automatically entitle an accused to bail in heinous offences.
- Does a delay in medical examination or chemical analysis of swabs automatically entitle an accused to pre-arrest bail in a sodomy case?
- Is an accused who aids in the commission of a sodomy offence equally liable as the principal offender for the purposes of bail?
- Does the presence of physical tenderness around the anus in a medical report constitute sufficient evidence to deny bail in a sodomy case?
- Section 377, Pakistan Penal Code 1860
- Section 367/A, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER KHURSHID ANWAR BHINDER, J. - The petitioners seek confirmation of ad-interim pre-arrest bail granted to them by this Court on 2.6.2008 in case F.I.R. No. 97/2008, dated 27:3.2008, registered under Sections 377, 367/A, P.P.C. At police station City, Tehsil Kamalia,' District Toba Tek Singh.
2. Precise allegations against the petitioners are that both of them on 23.3.2008 had enticed away complainant's son Usman and had taken him to some deserted place and thereafter had committed sodomy with him.
3. Learned counsel for the petitioners submits that there is an unexplained delay of four days in lodging of the F.I.R. He further submits that a false and fabricated case has been registered against the petitioners due to enmity, as a matter of tact no such occurrence has even taken place. He further submits that medical examination of the victim was conducted three days after the occurrence. Had the story narrated in the F.I.R. Been true, then there was no reason whatsoever on the part of the complainant to get his son medically examined three days after the occurrence, therefore, the entire story mentioned in the F.I.R. Is absolutely false. He further submits that under the circumstances, petitioners' case is that of further inquiry into their guilt. He has relied upon PLJ 2007 Criminal Cases Lahore 130.
4. Learned counsel for the complainant has vehemently opposed confirmation of the bail application of the petitioners and has submitted that the petitioners have committed a very heinous offence of sodomy and they are not entitled to the concession of bail.
5. Learned DPG also opposes bail application of the petitioners and submits that the report, of the Chemical Examiner is absolutely insignificant for the reason that even if at all Chemical Examiner had opined that the report is negative, even then it is immaterial for the reason that semen stained swa bs were Sent to the Chemical Examiner three days after the occurrence, which are absolutely inconsequential as semen cannot stay in the anal canal for such a long time. There is absolutely no enmity between the parties and there was no reason for the complainant to falsely implicate the petitioners with the commission of said offence. He further submits that the petitioners have committed a very heinous offence of sodomy with the child which is unpardonable offence. He also refers to the eyewitness account given by Muhammad Faruq and Waseem, who had witnessed the- occurrence and they too have no enmity with the petitioners to falsely implicate them with the commission of said offence. Moreover, statement of the victim has also been taken into account, who had clearly stated that it was Kashif petitioner No. 2, who had committed sodomy with him. As regards petitioner No. 1, Muzammal, he has also aided the offence. He lastly submits that case Of the petitioners tails in the prohibitory clause of Section 497, Cr.P.C., therefore, they are not entitled to the concession of bail
6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record.. There is no denying the fact that*the petitioners have been nominated in the F.I.R. With specific role. Statement of the victim is also significant in this respect, wherein, he directly implicates both the petitioners with the commission of said offence, which was corroborated by two eye-witnesses of the occurrence Muhammad Faruq and Waseem, who also fully involve the petitioners with the commission of said offence. Above all, there is nothing on record which could show that enmity exists between the parties and due to that they have been falsely implicated. There was absolutely no reason whatsoever for the complainant as well as the victim to falsely implicate both the petitioners. As far as the report of the Chemical Examiner is concerned, which was obtained after three days of the occurrence, which becomes insignificant and inconsequential for the reason that swabs for the detection of semen were collected three days after the occurrence and as per medical jurisprudence semen Cannot remain in anus for more than 24 hours as human beings tend to pass stool and the germs as well as semen vanishes from the anal canal with the passage of stool, therefore, report of the Chemical Examiner is absolutely insignificant in this regard. Reliance can be placed on the report of the medical officer Who had seen tenderness around anus of the victim and as per his report the victim felt pain around anus hole and he had also opined in his report that tenderness is present, which is sufficient evidence to prove the guilt of the petitioners.
7. As far as the case of Muzammal is concerned, he' had aided the offence and is equally liable to the commission of said offence, therefore, I do not find any reason in confirming the ad-interim pre-arrest bail already granted to them by this Court, hence the present petition stands dismissed.