' KAMAL MUSTAFA BOKHARY, J.--Shabbir Hussain, aged 18 years, son of Muhammad Siddique, was tried for kidnapping Mst. Samina Bibi, aged 4 years and for committing Zina-bil-Jabr with her. The Additional Sessions Judge, Sargodha, on 17-7-1985, acquitted him of the charges under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Faqir Muhammad, first informant, has filed this revision which is before us for disposal.
2. On return home from his shop petitioner came to know on 18-1-1985 that his minor daughter Mst.
Samina Bibi aged four years did not return home. Petitioner went out in search of her and when he reached near a graveyard of Kot Farid Road, Sargodha at 5-30 p.m. Muhammad Nadeem, P.W. And two others told him that they had seen respondent taking away the girl on a bicycle towards the graveyard. In the graveyard, they heard the cries of the child and found Samina Bibi naked without Shalwar and the respondent also in a naked position without Shalwar. The respondent was caught red-handed for attempt to commit Zina with Mst. Samina Bibi. Respondent was taken to the police station where formal F.I.R. Was registered on the same day at 6-15 p.m..
3. The investigation in this case was made by Muhammad Khan Sub-Inspector, P.W. He secured bicycle, belonging to the respondent which was produced before the police. Respondent was also produced before him by the first informant, and Muhammad Nadeem, P.W. The Investigating Officer arrested him and got him medically examined. After completion of the investigation respondent was challaned in Court.
4. Respondent pleaded not guilty to the charge. He stated that petitioner was inimical towards his family and was in the habit of levelling false allegations against his family. Previously both had levelled the allegation of theft against Ansar, nephew of respondent, due to which petitioner had paid Rs,700 in order to save his own skin. Respondent did not examine himself as his own witness nor led any other evidence in his defence. The trial Court acquitted respondent for the reasons that it was a case of preparation only and there was nothing on record that any attempt to commit the offence alleged was made against the respondent. The trial Court also found that removal of Mst.
Samina Bibi for a few paces does not constitute the offence under section 11 of the Ordinance.
5. It has been argued before us that on the evidence on record the offence under sections 10 and 11 have been proved as constituted in law.
6. We have been taken through the evidence in this case which we have perused ourselves. It is in evidence that Mst. Samina Bibi was found naked in the graveyard where the respondent was also present in a naked position. Muhammad Nadeem, P.W. Deposed that he had seen respondent taking away Mst. Samina Bibi on a bicycle towards the graveyard. Respondent was captured by the first information, and Muhammad Nadeem who produced respondent before the police at the Police Station alongwith bicycle which was secured by the police.
7. In the Full Bench case of this Court titled Muhammad Aslam v. The State PLD 1985 F SC 282 accused at about mid-night trespassed into house of complainant, went to cot of prosecutrix and untied Azarband of her Shalwar and started {{URDU TEXT}} with her. It was held that it was an attempt and accused was rightly convicted under section 10 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It was further held that in some cases a solitary overt act may constitute attempt.
8. In the case in hand respondent No,1 was seen by Muhamma Nadeem, P.W., taking away Mst.
Samina Bibi towards the graveyard and respondent No,1 was found in a naked position at that place with Mst. Samina Bibi without Shaiwar. It appears that respondent had n other purpose in taking the child to a forsaken place where he was found with the child in a naked position except under a decision to commit the offence alleged against him. He had crossed the first two stages mentioned in the above case and if not interrupted he would have completed the offence. On the evidence, it seems that attempt to commit under section 10 was constituted in law. The place from where respondent was captured with the child was away from her house whey respondent had taken away the minor child for no purpose other than the offence alleged against him. On the evidence the offence unde section 11 also seems to have been made out against respondent No,1. It appears that the trial Court was not properly assisted and did no appreciate the law applicable to the case which resulted in failure to pass the order under revision in accordance with law.
9. For the above reasons the order, dated 17-7-1985 of the Additional Sessions Judge, Sargodha is set aside and the case is remanded for fresh trial according to law.
The learned Sessions Judge, Sargodha will either try the case himself or entrust it to some other Court of competent jurisdiction other than the learned Additional Sessions Judge, who passed the order under revision for having expressed his opinion.