1996 P Cr (PLP)

Muhammad Shuaib v. The Crown PLD 1951 Bal. 22 and 1926 IC 257 ref. Altaf Ibrahim Qureshi for Petitioner. Muhammad Rafiq for the State. This is an application for bail after arrest in a case F.I.R. No.221/94, dated 11‑5‑1994 for the offences under section 377, P.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station City Burewala, District Vehari.

2. Briefly stated the facts are that on 11‑5‑1994 at, 3‑30 p.m. the complainant sent his younger brother Abdul Majeed to buy curd from the Bazar. He came back at 6‑30 p.m. and told the complainant that he was forcibly taken away by the petitioner and two of his co‑accused, on a motor‑cycle and they committed sodomy with him and, thereafter brought him back and left him near his house.

3. The tenor of F.I.R. shows that the very purpose of the petitioner and his co‑accused was to commit sodomy and not to abduct him. Had they intended to abduct him, they would not have brought Abdul Majeed back to his house; therefore, section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, shall not be applicable to the facts of the case. Reliance can be placed upon Muhammad Saleem v. The State 1985 PCr.LJ 240 wherein it was observed:‑‑ "It is doubtful if section 12 of the Zina Ordinance, VII of 1979 will be applicable in the present case. Such section seems to punish those who kidnap or abduct a person for the purpose of subjecting such persons to unnatural lust. This section does not provide for punishment of persons actually committing sodomy."

4. The story narrated by the victim is that he was subjected to unnatural lust forcibly by three persons turn by turn but according to the medical certificate there were no marks of violence on his parts of the body. It was further observed by the Medical Officer that there were no semen stains or blood stains. This observation of the doctor negates the version of the victim. Reliance can be placed upon Shafa Ullah and another v. The State 1984 PCr.LJ 3195 wherein it was observed:‑‑ "Again had the complainant been subjected to carnal intercourse by two young men by force, his anus would have been extensively damaged and he would have immensely bled and his Shalwar gore with blood but the doctor who examined him only found an abrasion 1 /2 x 1/4 c.m. at 12 O'clock position just outside the anus and a laceration in the anus at 12 O'clock position." Under these circumstances the positive report of the Chemical Examiner was of no help to the prosecution.

5. So far as section 377, P.P.C. is concerned, penetration was its essential ingredient and mere seminal stains on the clothes of the victim in the presence of sperms round the anal area did not mean that the essential ingredient of the offence i.e. penetration was satisfied. Reference in this respect can be made to Muhammad Shuaib v. The Crown PLD 1951 Balochistan 22:‑‑ "In Indian Cases 1926, p.257, it was, I consider rightly observed by the learned Judge that evidence in support of a charge under section 377, Pakistan Penal Code must be very convincing as it is very easy to bring such a charge but extremely difficult to refute it. One of the essential ingredients to prove an offence under section 377, Pakistan Penal Code is, among others, that penetration must have been effected. In this sense the committal of an unnatural offence is very similar to that of rape where equally penetration is an essential ingredient which must be proved before conviction can follow."

6. Keeping in view the facts and circumstances of the case it can prima facie be concluded that the matter against the petitioner needed further inquiry. I Therefore, the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.30,000 (Rupees thirty thousand) with one surety in the like amount to the satisfaction of A.C./Ilaqa Magistrate, Vehari. N.H.Q./M‑2678/L Bail allowed