1994 P Cr (PLP)

Syed Zulfiqar Haider for Petitioner. Sh. Ehsan Ahmad for the State. The petitioner is one of the accused in a case registered vide F.I.R. No.101/94, dated 9-5-1994 under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Faisal Town, Lahore.

2. The learned counsel for the petitioner and the State were heard at length in respect of the contentions raised herein. It was confirmed on behalf of the State that the text of the F.I.R. lodged by a Police Officer after raiding the apartment of the petitioner/accused without search warrants, failed to disclose any detail regarding as to who, of the accused named therein, were indulged in kissing etc., and that no detail in respect of the preparation for committing Zina, as alleged, has been stated in the F.I.R. Therefore, it is hereby observed that the case of the petitioner is duly covered under the provisions of subsection (2) of section 497, Cr.P.C. In this respect strength is drawn by placing reliance on Sohail Hameed v. Federation of Pakistan P L D 1993 FSC 44, wherein it has been held as follows in para. 6 at page 47:-- "On account of this principle (Islamic Jurisprudence referred to in the cited case as ; mere intention not coupled with any preparation or attempt to translate the intention into action is not liable for any punishment. Thus, even after having an intention to commit a crime followed by preparation to commit it, if a crime is not committed for some reason the mere intention or preparation is not liable to punishment specified for the crime itself, unless the preparation by itself as a crime." Second authority relied upon by the learned counsel further supports the case of the petitioner i.e. Muhammad Saleem and another v. The State 1988 p Cr. L J 2321 Federal Shariat Court, wherein it was held as follows:-- "The charge against the appellants was of attempt to commit Zina. By no stretch of imagination it can be stated that the two appellants by kissing and embracing each other had attempted to commit. Zina with each other. If they had been embracing or kissing each other, it can be said that at the most they had an intention to commit Zina, but no one can be punished for mere intention to commit a crime. Moreover, the alleged act of the two appellants in kissing and embracing inside a house is not covered by any of the laws relating to Hudood. This action is not punishable even under any section of Penal Code or by other penal law. Another irregularity committed by Niazul Hassan, A.S.I., in his case was that he raided the house of the appellant without any search-warrant. Even if it was a prostitution den, the A.S.I. could not have entered the house without proper search warrant." 3, In addition thereto, it was confirmed on behalf of the State that the petitioner is neither a previous convict nor a hardened criminal and that he is B not longer required by the police.

4. Therefore, the petitioner is hereby allowed bail in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of thel A.C./Duty Magistrate, Model Town, Lahore. N.H.Q./M-1633/L Bail allowed.