1993 P Cr (PLP)

Ch. Muhammad Ibrahim for Petitioner. Syed Ali Raza for the State. The petitioner is accused of offences under section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 452, P.P.C., vide F.I.R. No.435, dated 30-11-1992, registered at Police Station Raiwind, District Kasur.

2. According to the F.I.R., in brief, the petitioner is alleged to have entered into the house of the complainant Mst. Najaman Parveen by scaling over the wall and thereafter caught hold of her and it is further alleged therein that in order to commit Zina-bil-Jabr, he had broken her Azarband, but on her hue and cry, her father Muhammad Shafi and Muhammad Abdullah had come to the spot, whereupon the accused seeing them, ran away. It is further alleged therein that during the struggle the complainant received scratches on her face and left knee, and that her shirt and Shalwar were torn.

3. The learned counsel contended for bail of the petitioner and submitted that the case is false and an outcome of enmity. Further, submitted that in any case no offence under section 10 of the Ordinance in question is made out as it has nowhere been alleged that the petitioner had committed Zina with the complainant; and that the allegation of the complainant is only to the effect that an attempt was made to do so. Further argued that even the case of attempt to commit Zina is not made out against petitioner as neither he had taken off his clothes nor the complainant was disrobed or was in a position where she could have been subjected to such an offence. In this respect, further stated that at best the case of the prosecution falls under the provisions of section 354, P.P.C. i.e. an assault or use of criminal force against a woman with an intent to outrage her modesty; and that the punishment for the same being two years' R.I. and the fine at the most, the same is not hit by the prohibitory clause. Further submitted that the offence under section 452, P.P.C. alleged against the petitioner is also not hit by the prohibitory clause as the punishment for the same is seven years' R.I. Further argued that mere tearing of shirt and Shalwar of the complainant or dragging her, does not constitute any attempt to commit Zina-bil-Jabr. In this respect, it is further submitted that as no Azarband was produced before the police by the complainant as is evident from the F.I.R., therefore, the allegation to that effect is without any force. Further submitted that the F.I.R. has been lodged after a delay of 2 days which creates serious doubt about its veracity. Further argued that the petitioner is a young man. He is neither a previous convict nor a hardened criminal and that he is no longer required by the police. To support his contentions, the learned counsel placed reliance on Waris Ali v. The State 1984 P Cr. L J 2179(1) wherein it was held that that the act of the accused falling short of attempt to commit Zina-bil-Jabr inasmuch as the victim was not found naked, and the accused therein was allowed anticipatory bail; and on The State v. Nasirullah P L D 1964 Dacca 710; wherein it was held that attempt to commit crime may not be confused with act merely indicating intention to commit crime or mere preparation for its commission and it was further held therein that attempt was not complete unless the act passed beyond stage of preparation.

4. The learned counsel for the State opposed the present bail petition but conceded that neither the victim nor the accused is alleged to be naked and that no Azarband had been produced before the police by the complainant.

5. Therefore, as it is yet to be determined, whether the offence alleged is covered under the provisions of section 16 of the Ordinance in question and as no offence under section 10 is made out from the reading of the F.I.R., under the facts and circumstances highlighted above on behalf of the petitioner, and as the punishment for the offence under section 452, P.P.C., is not hit by the prohibitory clause, the case of the petitioner is duly covered by the provisions of subsection (2) of section 497, Cr.P.C. Hence, the petitioner is hereby allowed bail in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of the A.C./Duty Magistrate, Kasur. N.H.Q./M-894/L Bail allowed.