ZIA FARHAT Versus PRESIDING OFFICER, SPECIAL COURT (BANKING)
ORDER
The petitioner through this petition filed under section 497, Cr.P.C. seeks his post‑arrest bail in case F.I.R. No.43/95, dated 15‑3‑1995, under section 377; P.P.C. and section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, registered with Police Station Kot Mithan, against the petitioner for committing unnatural offence with the complainant.
2. The post‑arrest bail petition of the petitioner was declined by Sessions Judge, Rajanpur on 19‑4‑1995. The case of the prosecution is that the complainant was grazing goats in the fields alongwith the accused/petitioner. The victim was pursuaded for the commission of unnatural offence. On refusal, he was dragged to the cotton field and was subjected to sodomy forcibly.
3. I have heard the learned counsel for the respective parties and have also perused the record with their able assistance.
4. Admittedly no eye‑witness was cited in the F.I.R. The complainant was a married man and perusal of Nikahnama register dated 3‑11‑1994, shows the age of the complainant as 18 years. The occurrence took place at about 11-00 a.m. on 15‑3‑1995, but the F.I.R. was lodged at 7‑45 p.m. with unexplained delay of more than nine hours, which itself casts a serious doubt upon the case of the prosecution. The accused is also of the same age and to commit unnatural offence forcibly, prima facie, does not appeal to the prudence of an ordinary man.
5. In addition to the above, the residents of the locality have also sworn affidavits to the effect that this occurrence had not taken place in the land owned by Sardar Muhammad Nawaz.
6. The victim was medically examined by Dr. Rab Nawaz, who gave the report which is reproduced below:‑‑
"A young boy of 14/ 15 years of age with average health and built. Fully conscious, well‑oriented with time and places Sitting comfortably. Complains of no pain on defaction. On local examination: No sign of violence or staining found on anus and spinal area. The anus was of normal shape. On digital examination finger stall was stained with fiecal matter. On proctoscopic examination the anorectal muscose was of normal colour. No bruise, laceration or staining was found."
According to Farikh's Textbook of Medical Jurisprudence and Toxicology, if the victim is subjected to sodomy, his anus shall have the condition, as given under the heading of "Unnatural Sexual Offences, subheading" "Genital signs". Relevant portion is as under.‑‑
"The anal orifice is found dilated, irritable and tender to touch and a zone of bruising may be seen around the orifice. There are often slight abrasions between the anus and the tip of the coccyx. If there is gradual but forcible overstretching, a radia fissure of the muscous membrane of the anus will be found. If sudden violence is used, there is often a triangular bruised tear of the posterior part of the anus with its base external. The person may complain of pain when the anus is being examined. Gait and defacetion may also be painful."
7. The doctor who medically examined the victim saw no signs of violence on his body or any abnormality was witnessed by him. In these circumstances, the medico‑legal report also does not favour the prosecution.
8. The challan has already been submitted in the Court. The petitioner was arrested on 16‑3‑1995 and since then he is in the judicial lock‑up. No progress has been made to the trial of the case. The petitioner cannot be kept in the lock up for an indefinite period because the law does not countenance it. The bail cannot be withheld as punishment.
9. In view of the aforegoing, I am pursuaded to admit the petitioner to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Rajanpur.
H.B.T./M‑6/L Petition accepted.