1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.--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.
2. 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.
3. 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.
4. 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 to 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.
5. 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.