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Criminal Miscellaneous No. 1428-B of 1982, decided on 11th December, 1982.

---S.497/498--Of fence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) , S.12--Bail--Offence of sodomy--Victim young boy of age group of accused, not a habitual catamite and no injury found by doctor in or around his anus--Chemical Examiner's report still awaited--Accused in jail for over three months--Delay of twenty-four hours in reporting matter to Police--One of eye-witnesses named in first information report swearing affidavit in favour of accused--Case against accused one of further enquiry--Bail allowed.

Muhammad Bashir Khan for Petitioners.

Ch. Akhtar Masood for the State.

Both the petitioners have been charged with the offence of committing sodomy with Ghulam Sarwar a boy of 17 years on 24th August, 1982 at 7.00 p.m. in the vicinity of village Dogar Classra when he was returning home after day's work. The case was registered with a delay of about 24 hours at Police Station Kot Adu. The victim was medically examined and the doctor has noted 2 abrasions and 2 contusions on his nose, lip and knee joint. The Medical Officer however reserved his opinion as to whether the victim was subjected to sodomy or not until the receipt of the result of anal swabs sent to the Chemical Examiner. The general condition of the anus of the petitioner as reported by the doctor is reproduced below:-

"On an internal examination:- No mark of contusion or abrasion are found. The anus is not funnel shaped hence not an habitual agent. Three anal swabs were taken which are derived and sealed. These are forwarded to the Chemical Examiner, Punjab, Lahore for analysis Opinion about sodomy reserved till the arrival of the report of Chemical Examiner, Lahore."

2. On 5th December, 1982 A.S.I. Mohayyuddin the Investigating Officer in this case was directed by me to procure the Chemical Examiner's report and produce the same in Court today. The A.S.I. is present and states that the report has not yet been received despite the fact that a messenger was sent to collect the same.

3. I have heard the learned counsel for the petitioners as well as the State and also considered the material on record. It transpires that the victim Ghulam Sarwar in this case is a young boy and belongs to the age group of the petitioners; he is not habitual catamite and no injury was found by the doctor in or around his anus and the Chemical Examiner's report is still awaited despite the petitioners being in jail for over 3 months; that there is a delay of about 24 hours in reporting the matter to the Police and also one of the eye-witnesses named in the F.I.R. has sworn an affidavit in favour of the petitioners, for these reasons I feel that the case of the petitioners is one of further inquiry as to whether they have committed the offence with which they have been charged or not Consequently I allow this petition. The petitioners are directed to be released on bail subject to their furnishing security in the sum of Rs.10,000 (Rupees ten thousand only) each with one surety each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Muzaffargarh.

M. Y. H . Bail granted.

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