Suo Mom notice for cancellation of bail had been issued to the respondent. The respondent had been charged under sections 10, 11 and 18 of Zina Ordinance, 1979 and it was alleged against him that on 4th July, 1979 at about 11 a.m. He had kidnapped a girl Mst. Shahida, daughter of Muhammad Yousaf aged about 7 years and had taken her into his sister's house and took her into a room and put of her shalwar and attempted to forcibly intercourse with her But the girl felt pain and she raised cries and thereupon respondent Ishaque fled away. He was seen leaving the said house by Abdullah, son of Usman and Umer, son of Hashim who had also heard cries and they had seen the girl Mst. Shahida whose clothes were soiled with semen.
The bail was granted to the applicant by the Additional Sessions Judge, Karachi on the ground that the Medical Officer who had examined the applicant and the prosecutrix had not found any attempt or act of rape having been committed upon Mst. Shahida. I had directed Mr. Niaz Ahmed counsel for the State to procure the police papers and he has shown the report of the chemical analyser who had found semen stains-on some of the clothes, the shalwar of Mst. Shahida and the under--wear of the accused.
2. The case is therefore not a case of Hadd under section 10 of Zina Ordinance (VII of 1979) as there is no actual rape proved and there are no witnesses available for actual rape, but it would appear to be a case under section 11 of the same Ordinance and section 9 read with section 18 of the same Ordinance, as the accused appears to have kidnapped that girl from guardianship and attempted to commit rape upon her which is clearly suggested by the presence of semen on the Shalwar of Shahida and underwear of accused but surprisingly the prosecution has not recorded the statement of Mst. Shahida who, although, seven years old and minor but not too small to make a statement as a girl of 7 years A can identify her assailant. But the statement of Abdullah and Umer do provide a strong circumstance against the accused coupled with the stains. The offence under section 9 is punishable with 10 years' R. I. And the attempt for an offence under section 9 is punishable for 1/2 of that term under section 18 of the said Ordinance viz. 5 years and, therefore it is not a case which could be said to be governed by the bar of section 497, Cr. P. C. And therefore it would not be proper to interfere in the discretion exercised by lower Court in the circumstances of this case.
3. In these circumstances, the notice of cancellation of bail is dis--charged, but the trial Court is directed to proceed with the trial of case immediately.
Bail cancelled,