1985 P Cr (PLP)

Khalid Iqbal Qazi for the State. Muhammad Nazir, accused‑petitioner, has been, complained against, by one Mst. Zeb‑un‑Nisa, wife of Tasawar Hussain, for entering her house at mid‑night when she was fast asleep by scaling over the wall, then removing her shalwar and his own for committing act of Zina‑bil‑Jabr with her. In the statement made to Police for registration of a case, it was stated by her that when Muhammad Nazir, accused tried to lie on her, she was awakened, raised hue and cry, when Fazal Dad son of Allah Dad and Muhammad Siddiq son of Ghulam Akbar came to her rescue. At this juncture, the accused made good his escape. Criminal case under sections 10 and 18 of the Offence of Zina (Enforce ment of Hudood) Ordinance, 1979, has been registered, thus, against the petitioner. The accused was arrested on 14‑7‑1984 and since then is in lock‑up. Investigation is stated to be complete and a complete challan has been sent up for trial before the Court of competent jurisdiction. The petitioner applied for bail, before learned Additional ; Sessions Judge, Jhelum vide order, dated 16‑8‑1984, the petition did not succeed and was dismissed. The accused‑petitioner has repeated his prayer for bail through the instant criminal miscellaneous petition. Criminal miscellaneous was admitted to full hearing on 10‑10‑1984 The admitting note reads:‑ "10‑10‑1984. Mr. Iftikhar Hussain Chaudhry, Advocate, learned counsel submits that on the facts alleged by the prosecution, it is a case of preparation. He relies on Fahimuddin alias Kala v. The State 1984 P Cr. L J 2444. He further submits that even if the petitioner is ultimately convicted of the offence of attempting Zina‑bil‑Jabr, he is not likely to be awarded the maximum punishment. He has referred to Muhammad Iqbal v. The State PLD 1981 F S C 329 and Shaukat v. The State P L D 1982 FSC 179 where in cases of graver nature, convicts were awarded sentence of three years. Notice."

2. Petition for bail, in these circumstances, has come up for hearing, before me, in presence of Mr. Iftikhar Hussain Chaudhary, Advocate, learned counsel for the petitioner and Mr. Khalid Iqbal Qazi, Advocate, counsel for the respondent‑State. Learned counsel for the petitioner has contended that the offence alleged against the petitioner in the circumstances of the case was highly improbable and was outcome of enmity. It was further contended that Muhammad Siddiq one of the witnesses named in the F.I.R. who is alleged to have seen the occurrence, has already sworn an affidavit that he has not seen the occurrence at all and that his name has been cited as a witness without his consent. Affidavit, alongwith the photo copy of his identity card has been placed before the Court. Similarly, sworn affidavits of three other persons claiming to be residents in the neighbourhood of the house of Mst. Zeb‑un‑Nisa, have also been placed before the Court, showing that no such occurrence, had taken place on the said date. Learned counsel further contended that even if all the facts mentioned in the F.I.R. are assumed to be correct, the case against the petitioner would only amount to a mere preparation to commit an offence of Zina‑bil‑Jabr and the facts alleged may not earn him the maximum penalty prescribed under law for such an offence with which the petitioner was charged. In that view of the matter, he contended, that the petitioner was entitled to be released on bail during the pendeny of the proceedings against him. Learned counsel states that the petitioner accused was in jail and was no longer required by the police for investigation. All the material, connecting the petitioner with the alleged commission of the offence has already been collected by the police and placed before the Court. In case, after trial, the petitioner was convicted, adequate punishment would be awarded to him. Bail, therefore, should not be refused as a measure of punishment to the petitioner before he was proved to have been found guilty by a Court of competent jurisdiction. Relied on Amir v. The State 1973 P Cr. L J 205, Shaukat v. The State P L D 1982 FSC 179, Muhammad Iqbal v. The State P L D 1981 F S C 3'29, Fahimuddin alias Kala v. The State 1984 P Cr. L J 2444, to contend that the petitioner, in the facts and circumstances of the case, as they emerge from the reading of the F.I.R. is entitled to concession of bail. The petitioner is aged about 25 years whereas Mst. Zeb‑un‑Nisa is a married lady of 35/36 years of age having several children. Her husband is stated to be in employment at Quetta.

3. Mr. Khalid Iqbal Qazi, Advocate, learned counsel for the State, assisted by a counsel who represented the complainant, vehemently, opposed the grant of bail to the petitioner, who according to him, has committed an inhuman act of immense ignominy in violating the privacy of the house and tried to violate the chastity of a woman at dead night when she was asleep in company of her children all alone. Her husband was in Quetta and there was no male member present in the house. Such type of people, he contended, are not entitled to any concession from the Courts in regard to bail. If a person, like the petitioner, who has violated the sanctity attached to a house and was, under threat, bent upon, to commit an act of Zina on a poor helpless lady, is allowed a concession of bail, during trial, it might serve as an encouragement to those who take the law into their hands and destroy the deeply cherished values of our society. Learned counsel also contended that the offence alleged against the petitioner was of an extremely serious nature and shocking to human conscience. This being the case, the petitioner who has seriously violated the respect of a lady taking the advantage of her loneliness, cannot be let loose on the society.

4. I have considered the submissions made at the Bar by learned counsel for both the parties, petitioner and the State. The statement of Mst. Zeb‑un‑Nisa, which was reproduced in F.I.R. shows that the petitioner at midnight, by scaling over wall, entered the house and removed Shalwar of Mst. Zeb‑un‑Nisa, when she was fast asleep in company of her children in her courtyard. He removed his own Shalwar also and then tried to commit an offence of Zina‑bil‑jabr with her. When the accused‑petitioner is stated to have lied upon his victim i.e. Mst. Zeb‑un‑Nisa, she awoke and raised hue and cry. This alarm attracted the attention of the two witnesses namely Fazal Ahmad and Muhammad Siddiq mentioned in the F.I.R. The act was witnessed by these two persons. Seeing them, the petitioner took to his heels and decamped from the scene. It is admitted that Fazal Ahmad and Muhammad Siddiq supported the version of Mat. Zeb‑un‑Nisa before Police. It is true that the accused did not succeed in committing the act of Zina bil‑jabr with Mst. Zeb‑un‑Nisa but his attempt was foiled by her noise and the appearance of the two witnesses on the scene. Had it not been so, the petitioner, might well have succeeded in his nefarious act. What punishment will be awarded ultimately by the Court trying the offence on the facts proved was just a mere matter of guess and no decision about the quantum of punishment can be made with certainty at this stage. In this view of the matter, the cases, Shaukat v. The State and Muhammad Iqbal v. The State may not provide any help in the resolution of the controversy regulating the grant or refusal of bail to the accused. In case Fahim‑ud‑Din alias Kala v. The State, a learned Single Judge of this Court, no doubt, in almost similar circum stances had granted bail in respect of an offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The observations made in paras. 3 and 4 of the judgment, for facility of reference are quoted below:‑ "As per contents of the F.I.R., the petitioner finding Mst. Farzana Kausar to be alone in the house, entered into her house, removed his own Shalwar, and that of Mst. Farzana Kausar and was about to subject her to 'Zina‑bil‑jabr' that her brother Ehsan Ali arrived and the petitioner ran away. The petitioner as also, Mst. Farzana Kausar have not been got medically examined to ascertain any marks of violence on the person of Mst. Farzana Kausar or any stain of semen on the clothes of either of the two. The facts disclosed in the F.I.R. per se do not constitute the offence of attempt to commit 'Zina‑bil‑JJabr'. The allegations in the F.I.R. show that the petitioner was still at the stage of preparation for commission of offence of 'Zina', a stage which appears to be short of attempt to commit 'Zina'. In the above circumstances and without prejudice to the merits of the case the petitioner is admitted to bail in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner Model Town, Lahore "

5. Contents of the F.I.R. disclose that when Mst. Zeb‑un‑Nisa raised alarm, the petitioner tried to shut her mouth and taking out a knife, threatened her with dire consequences if she failed to observe silence. Had it not been for Fazal Ahmad and Muhammad Siddique, the two witnesses, the petitioner may have succeeded in completing the act df Zina with a lady all alone in her house except her minor children. For such like people, who show scant regard for others and indulge in these base inhuman acts, there should be no sympathy from the Courts. Any leniency shown in the matter of bait in respect of non‑bailable offences particularly moral offences is more likely to increase the incidents of crime and prove a serious menace to our society. Petitioner has shown himself to be a dare devil. The petitioner stands charged under section 10 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The punishment prescribed for the offence falls within the prohibitory clause of section 497, Cr.P.C. The petitioner has by his own conduct, disentitled himself to the grant of concession of bail. Muhammad Siddiq, a cited witness in the F.I.R. whose sworn affidavit has been placed before the Court today, is not present in Court. Assuming it to be true that he has sworn such an affidavit there is still the statement of Mst. Zeb‑un‑Nisa and Fazal Ahmad to support the prosecution version. In the background of our own society, no woman who enjoys respect worth the name would come out with such a charge which involved her own honour and respect. With immense respects for the views expressed in Fahimuddin's case, I prefer to take a different view and hold that the petitioner is not entitled to grant of concession of bail when he has involved himself in such a heinous offence. As at present there is no material suggesting false involvement of the petitioner in such a serious offence. In the light of what has gone before, I feel that the petitioner does not qualify for grant of bail. Petition, therefore, stands dismissed. Nothing contained herein shall however affect the merits of the case which will be decided in the light of evidence produced before the Court un‑influenced by any observations made in this order. S. G. D. Bail disallowed.