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Criminal Miscellaneous No. 181/B of 1985, decided on 22nd June, 1985.

Criminal Procedure Code (V of 1898)--

---S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 t 18--Bail, grant of--Occurrence allegedly taken place in evening--F.I.R. lodged on following day at 9/10 a.m.--No explanation for delay in lodging of F.I.R. offered--Victim not medically examined- Securing of woman from her arms and legs and effort to remove her Shalwar, fell short of attempt to commit Zina--Such acts would amount to outraging modesty of woman punishable under S. 354, Penal Code--Bail allowed in circumstances of case.

Waris Ali v. The State 1984 P Cr. L J 2179; Muhammad Shafiq v. The State 1984 P Cr. L J 2482; Yaseen v. The State P L D 1983 FSC 53 and Anwarul Haq v. The State P L D 1983 F S C 234 ref.

Iftikhar Hussain Chaudhary for Petitioners.

Sh. Zia-ud-Din for the State.

The petitioners, Arshad Mahmood, Mohammad Walayat and Arshad who are involved in a case under sections 11 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1973, arising out of F.I.R. No.17 dated 3-3-1985 registered at Police Station, Find Dadan Khan district Jhelum, have sought to be released on bail.

2. It as alleged that the petitioners caught hold of Mst. Bhag Hhaj unmarried daughter of the first informant, near the wheat field of Anar Khan. They pushed her into the wheat crop. Two of the petitioners secured her from her arms and legs while the third tried to remove her Shalwar, but on her alarm, Anar Khan and Muhammad Bashir were attracted to the spot. The petitioners thus made good their escape from the scene of occurrence.

3. The occurrence allegedly took place on 2-3-1985 at Shamwela. The report was lodged through written application by Muhammad Inayat, the father of Mst. Bhag Bhari, on the following day at 9/10 a. m. No explanation for this delay has been given. The police station is at a distance of three miles from the place of occurrence. Mst. Bhag Bhari has not been medically examined and there is thus no evidence of any mark of violence on her person. The allegations contained in the F.I.R. per se do not constitute the offence of attempt to commit Zina. Securing of a woman from her arms and legs and effort to remove her Shalwar;B fall short of an attempt to commit Zina. Such acts amount to outraging the modesty of a woman, punishable under section 354, P.P.C,

4. In Waris Ali v. The State 1984 P Cr. L J 2179, it has been held that dragging of prosecutrix in order to subject her to sexual intercourse falls short of attempt to commit Zina-bil-jabs. Similar view has been expressed in Muhammad Shafiq v. The State 1984 P Cr. L J 2482. In Yaseen v . The State P L D 1983 F S C 53, it was held that trying to make the prosecutrix naked by removing her Shalwar and not succeeding in such attempt, . offence punishable under section 18 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not made out. The conviction of the appellant was thus altered to section 354, P.P.C. In Anwar-ul-Haq 'v. The State P L D 1983 F S C 234, the prosecutrix was dragged inside the house to a room and from there to kitchen. Her hands and mouth were tied by a Dopatta and attempt was made to untie the string of her Shalwar. It was held that offence under section 354, P.P.C. was committed and not the one punishable under section 18 of Ordinance VII of 1979.

f. In the light of the above discussion, the petitioner are admitted to bail in the sum of Rs.20.000 (twenty thousand) each with one surety each in the like amount to the satisfaction of A.C. Pind Dadan Khan.

S.A.

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