Find a Lawyer

Criminal Miscellaneous No. 710-B of 1983/BWP., decided on 23rd August 1983.

---S.497/498--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3) & 18--Penal Code (XLV of 1860), S.354--Bail--Act of accused not amounting to attempt to commit Zina-bil-Jabr and prima facie punishable under section 354, P.P.C.--No complaint made by prosecutrix for Zina-bil-Jabr allegedly committed earlier with her by accused and allegation not supported by evidence--Prosecutrix an old habitual case of sexual intercourse--Allegation against accused requiring further inquiry- Bail granted.

Ch. Asghar Ali Bhatti for Petitioner.

M.A. Hameed for the State.

This is an application for bail on behalf of Muhammad Shafique in a case under section 10(3)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Haroonabad vide F.I.R. No.67/83, dated 2nd April, 1983.

2. The prosecution case is that on 1st April, 1983 the petitioner forcibly took Mst. Summera Khanum in a house and attempted to commit rape when Ghulam Rasool and Khalid Hussain, witnesses reached there and on Lalkara raised by them, the petitioner made good his escape. At that time Mst. Summera Khanum informed the aforesaid witnesses that she was also subjected to Zina-bil-Jabr by the petitioner two months earlier.

3. Learned counsel for the petitioner submits that as for the allegations of attempt to commit Zina-bil-Jabr on 1st April, 1983, the act falls short of attempt to commit Zina. Reliance has been placed on case Yasin v. State P L D 1983 F S C 53 and Anwarul Haq alias Anwar v. State P L D 1983 F S C 234. So far as the allegation of commission of Zina-bil-Jabr by the petitioner two months earlier is concerned, neither any report was lodged by the prosecutrix nor did she disclose that fact to anyone.

As against this learned counsel for the State has opposed this application on the ground that the alleged offence falls within the prohibi tory clause of section 497, Cr. P.C.

4. After hearing the learned counsel and going through the record I find that as for the incident, dated 1st April, 1983, i.e. attempt to commit Zina-bil-Jabr, Mst. Summera Khanum in her statement recorded under section 161, Cr.P.C. has stated:-

and nothing more. To my mindrthe act as held by Federai Shariat Court in the cases referred to by the learned counsel does not amount to attempt to commit Zina-bil-Jabr and prima facie is punishable under section 354, P.P.C. which is bailable.

So far as the earlier act of Zina-bil-Jabr is concerned, no report or complaint was made by the prosecutrix with regard to that incident. Furthermore her statement that she was subjected to Zina-bil-Jabr by the petitioner two months prior to 1st April, 1983 is not supported by any other evidence. The medical evidence rather shows that she was pregnant by four months. The doctor has also opined that the prosecutrix was an old habitual case of sexual intercourse.

5. For what has been stated above I am of the opinion that the allegations against the petitioner require further inquiry. The petitioner is, therefore, allowed bail in the sum of Rs. 10,000 (Rupees ten thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner /Duty Magistrate, Haroonabad.

M.Y.H. Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.