1987 PLP 2305 (MLD)

Petitioner seeks bail in case FIR No.38/85, Police Station Model Town, Lahore registered under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The allegation against the petitioner is that during the night between 30th April and 1st May, 1985 he 'had attempted to commit Zina with his real brother's daughter Mst. Rehana aged about 11 years. According to the actual narration, the petitioner after having put off his own Shalwar and that of Mst.Rehana, had laid himself upon her whereupon the girl raised a noise, as a result of which the petitioner feeling scared ran away.

3. Learned counsel for the petitioner contended that the petitioner is not charged of an offence punishable with death or imprisonment for life; that there are decided cases of this Court where the bail has been granted to the persons arrested for having committed the offence under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, holding that the acts did not amount to attempt, even. In that connection learned counsel cited Muhammad Shafiq v. The State 1984 P Cr.L J 2482, Ashiq Hussain and 2 others v. The State 1984 P Cr.L J 930 and Fahimuddin alias Kala v. The State 1984 P Cr.L J 2444.

4. In the case reported at page 2482, the facts on the basis of which it was held that the offence did not amount to attempt, even, have not been recorded. In the case reported at page 930, it is recorded that the petitioner was holding a woman in his lap, and in the case reported at page 2444, it is noted that the petitioner had put off his own clothes and that of the girl as well, and was about to start committing Zina, when a brother of the girl arrived. It is clear that facts of none of the cases cited by learned counsel for the petitioner, tally with that of the case in hand. In the case in hand, the petitioner had not only put off his own Shalwar and that of the girl, but had laid himself upon the girl also and he had left the rest of it because of the noise of the girl. The other contention raised by learned counsel for the petitioner, is, that the mother of Mst.Rehana who is complainant in this case, has submitted an affidavit wherein she has stated, that she has pardoned the petitioner being wife of his real brother. Keeping in view the abominable act of the petitioner, I am note inclined to give any importance to the affidavit filed by the complainant. The petitioner had attempted to commit Zina with minor daughter of his own real brother and as such he does not deserve the concession of bail. Grant of bail is a matter of discretion, of course, to be exercised judicially, but the facts of the case, the manner in which the offence is committed have always to be given due regard and importance. If a girl of 10-11 years is unsafe at the hands of his own real uncle, who normally is supposed to act as father, I wonder, if any protection can be given to the girls to save from such abominable acts? In the circumstances, I find no merit in this petition. The same is dismissed. M.Y.H./A-156/L Bail refused.