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Criminal Petition for Special Leave to Appeal No.6‑R(S) of 1985, decided on 18th February, 1985.

(From the judgment of the Federal Shariat Court, Lahore dated 22‑11‑1984 in Appeal No. 76/L/84).

‑‑‑Art. 203‑F(2‑B)‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑Attempted rape‑‑Timely intervention of witnesses foiling commission‑‑Plea that it was only case of molestation, repelled‑‑A part of every attempt at rape may include preparation and/or molestation, but that does not mean that it was not attempt‑‑Everything for achieving penetration having been done by culprit and position of two bodies. establishing beyond doubt that attempt at rape had already commenced‑ Conviction upheld‑‑Leave to appeal refused.

‑‑‑Art. 203‑F(2‑B)‑‑Offence of Zina (Enforcemant of Hudood) OrdiancE (VII of 1979), S.11‑‑Kidnapping‑‑Accused working like a domestic servant charged with kidnapping child to his, quarter‑‑Being normal for child to accompany him to his quarter, leave to appeal granted to examine whether in circumstances it would take case of accused out o: definition of kidnapping.‑‑

Munir Piracha, Advocate Supreme Court and Sh. Salah‑ud‑Din Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing 18th February, 1985.

‑Leave t appeal has been sought from judgment dated 22‑11‑1984 of the Federals Shariat Court; whereby petitioner's appeal from conviction and sentence under Sections 11 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was dismissed.

Petitioner was charged for having taken away baby Rozina Naheed (aged 5/6 years) from her father's house to his own quarter where he removed her pajama as also of his own and made her sit in his lap in a compromising position when eye‑witnesses arrived and failed his attempt at Zina‑bil‑jabr. He has been convicted for kidnapping and attempted rape.

Learned counsel argued that the attempt at rape is not proved and that it was only a case of molestation under section 354, P.P.C. We do not agree with him. Every thing for achieving penetration having already been done by the culprit, it was not done because of P.Ws.' intervention. A part of every attempt at rape may include preparation and/or molestation but that does not mean that it is not attempt. The details of the position of the two bodies described by the eye‑witnesses established beyond doubt that the attempt at rape had already commenced when they reached the spot. Leave to appeal therefore regarding offence under Election 18 of the Ordinance is refused.

The question whether in view of the admissions of the eye witnesses to the effect that the petitioner was working like a domestic servant and that it was normal for the child to accompany him to his quarter, would not take the case of the petitioner out of the definition a of kidnapping, needs examination. We accordingly grant leave to appeal

regarding offence under section 11 of the Ordinance.

M.I. Leave granted.

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