1994 P Cr (PLP)

Altaf Ibrahim Qureshi for Petitioner. Nafees Ahmad Ansari, Asstt. A: G. for the State. Being nominated as an accused in case F.I.R. No. 106/93 dated 9-6-1993 registered at Police Station, Sahooka, District Vehari under section 18/10 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979, Ghulam Ali alias Goman, petitioner has moved this Court under section 497/498, Cr.P.C. for his release on bail, the same request having been refused to him by the learned Additional Sessions Judge, Burewala vide his order, dated 2-8-1993.

2. The above-mentioned case was registered against the petitioner at the instance of Mst. Hafeezan Bibi in which she alleged that about three years before she was married to Zafar Iqbal and a daughter was born from that wedlock which is alive. She alleged that on night between 2/3-6-1993 when she was sleeping in the courtyard of her house at about 12 mid-night a person by putting his hand on her mouth pressed her as a result of which the prosecutrix woke up and saw that it was Ghulam Ali, the petitioner, who shut her mouth with his right hand and had untied the string of her Shalwar with his left hand and was trying to commit Zina with her. The complainant raised the alarm which attracted Zafar Iqbal her husband and one Ghulam Fareed and upon seeing them the petitioner left the complainant. It was also pointed out that Gullo, who was standing outside the house by carrying the child of the complainant also left the house by throwing the baby in the house.

3. It is contended that the case against the petitioner is a fabrication made against him 6/7 days after the alleged occurrence only on account of enmity and party faction. It was also argued that the petitioner and his real brother Gullo both were named in the F.I.R. as the culprits but Gullo, the brother of the petitioner has been found innocent during the investigation and has since been discharged.

4. The learned Assistant Advocate-General did not oppose the bail in this case.

5. Without going deep into the merits as to whether the act of the petitioner of untying the string of the Shalwar of the prosecutrix falls under the definition of attempt to commit Zina or is a simple preparation or it amounts to assault or using of criminal force to any woman with intent to outrage her modesty, I am of the view that taking in view the contentions raised by the petitioner and the circumstances of this case, the case against the petitioner falls under the ambit of subsection (2) of section 497, Cr.P.C. being a case of further enquiry. I, therefore, direct that the petitioner shall be enlarged on bail provided he furnishes bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Burewala. N.H.Q./G-172/L Bail granted.