2008 PLP 677 (YLR)

ABDUL SHAKOOR PARACHA, J.

Muhammad Aslam son of Jaffer petitioner seeks bail after arrest in case registered against him vide F.I.R. No.165 dated 9-8-2006 for an offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Gunjial, District Khushab. Bail has been declined to the petitioner by the learned Additional, Sessions Judge, Khushab, vide his order dated 7-9-2006, hence this petition.

2. Allegation against the petitioner is that on 7-8-2006 at Peshi Wela, the petitioner dragged the complainant Mst. Farzana with an intention to commit Zina with her.

3. Learned counsel for petitioner contends that provisions of section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are not (sic) case, from the allegation levelled in the F.I.R. offence under section 354, P.P.C. may be attracted which is bailable. Reliance has been placed on the case-law reported as Yaseen v. The State PLD 1983 PK 53, Syed Shakeel Ahmad v. The State 1989 PCr.LJ 646 and Waris Ali and another v. The State 1984 PCr.LJ 2179(1). Adds that according to school certificate the petitioner was born on 15-3-1989 and was below the age of 18 years and was not an adult within the meaning of section 2(1)(a) of the Ordinance ibid on the date of occurrence, maximum, he is liable to be punished for five years under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, therefore, the offence does not fall within the prohibitory clause of section 497, Cr.P.C. the petitioner is behind the bars for the last four months, therefore, he is entitled for grant of bail.

4. Conversely, bail petition has been opposed by the learned State Counsel on the ground that the petitioner has committed an heinous offence; he dragged the complainant with an intention to commit Zina with her therefore, he is not entitled for grant of bail.

5. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. The petitioner allegedly dragged the prosecutorix in order to subject her to sexual intercourse, prima facie, act of petitioner was short of attempt to commit Zina-bil-Jabr; it is yet to be determined as to whether the allegation levelled against the petitioner attract the provisions of section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) or section 354, P.P.C. I am fortified with this view from the case reported as Syed Shakeel Ahmad v. The State 1989 PCr.LJ 646 and Waris Ali and another v. The State 1984 PCr.LJ 2179(1). In case reported Yaseen v. The State PLD 1983 F.S.C. 53 the allegation against the accused was that he was found trying to make the victim marked by removing her Shalwar and not succeeding in such attempt. The accused was convicted under section 18 of the Offence of Zina (Enforcement of Hodood) Ordinance, 1979. In appeal it was held that the offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not made out, therefore, the conviction was altered under section 354, P.P.C. and the accused was sentenced to two 'years' R.I. In another case reported as Anwar Masih v. The State NLR 1988 S.D. 487(1) which interpreting the provision of sec tion 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 the Court held that unsuccessful attempt to untie complainant's Shalwar in an attempt to commit Zina, would, at most fall under section 354, P.P.C. and not under section 18 of the Ordinance ibid and the accused was released on bail. According to school certificate, the petitioner was born on 15-3-1989. He was below 18 years of age on 7-8-2006 at the date of occurrence and was not an adult within the meaning of section 2(1)(a) of the Ordinance ibid, therefore, maximum sentence which can be awarded to the petitioner is five years under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, therefore, offences does not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner is behind the bars for a considerable' period.

6. For what has been discussed above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand) with one surety in the like amount to the satisfaction of the trial Court/duty Judge. H.B.T./M-564/L Bail granted.