' This is an application filed by Abdur Razzaq for grant of bail in a case registered against him and one Sahib Din under section 18 of Ordinance VII of 1979.
2. According to the F.I.R. Mst. Noor Jehan, wife of Muhammad Zaman complainant was cutting fodder in the fields when the petitioner and his co-accused suddenly came there. The petitioner held Mst. Noor Jehan in the Japhha and while kissing her face broke her string and dropped her down on the ground with intent to commit Zina-bil-Jabr with her. She raised hue and cry whereupon P.Ws. Reached the spot. On seeing them the petitioner and his co-accused left Mst.
Noor Jehan and ran away from (he spot.
3. I have heard the learned counsel for the petitioner and State. The contention of the learned counsel for the petitioner was that the act committed by the petitioner (though not admitted) at the most showed an offence under section 354 of the P.P.C. Relating to outraging the modesty of a woman. According to him, the said act did not fall within the ambit of attempt of Zina-bil-Jabr. He relied on Fahim-ud-Din alias Kala v. The State (1984 P Cr. L J 2878), Shaukat v. The State (PLD 1982 F SC 179), Riaz v. The State (1986 P Cr. L J 2878 and Syed Muhammad Saqib v. The State (1984 P Cr. L J 2768). He further submitted that the challan in the case had not yet been submitted and the petitioner was entitled to the grant of bail.
4. I am not persuaded to accept the contention raised by the learned counsel for the petitioner.
Whether the act done is preparation or attempt depends upon the peculiar circumstances of each case. Ordinarily, where a person has done some overt act which sufficiently demonstrates his real intention, takes him close to attainment of his design and but for resistance on the part of the victim or intervention by others, would have accomplished it, would be said to have made an attempt. With utmost respect, I do not subscribe to the view expressed in PLD 1982 F SC 179 that removal of trousers both by male and female is merely an act of preparation. In the said case, Mst.
Maqboolan was all alone in the house and was lying on a cot. She had bolted the door from inside.
The appellant alongwith his co-accused climbed over a wall of the house and jumped in the courtyard, entered the room and while kissing Mst. Maqboolan bit her on the cheek. He opened the string of her Shalwar and brought it down to her knees. He also removed his own Shalwar. These acts were meant to commit sexual intercourse. On the hue and cry of Mst. Maqboolan, P.Ws. Were attracted to the spot. They entered the house after scaling over the wall and captured the appellant. The acts done by the accused in the said case, in my view, amount to an attempt to commit Zina-bil-Jabr. To treat such acts as mere preparation and not an attempt to commit Zina would let loose devils on innocent girls without fear of serious punishment. Similarly, in the case of Fahim-ud-Din alias Kala v. The State, the accused person found Mst. Farzana Kausar all alone in the house and entered there, removed his own Shalwar and that of Mst. Farzana Kausar and was about to subject her to Zina-bil-Jabr, when her brother arrived and the petitioner ran away. These facts, to my mind, also constitute an attempt to commit Zina, if not Zina-bil--Jabr. Had the brother not arrived, the accused would have accomplished his evil design of committing Zina. The case of Syed Muhammad Saqib v. The State is distinguishable because in that case the accused had merely held the complainant and done nothing beyond that. Therefore, it was not a case of attempt to commit rape. In Riaz v. The State (1986 P Cr. L J 2878), bail was allowed to a boy of 17 years, who was alleged to have attempted to commit Zina with a woman of 45 years of age. The case was said to be an outcome of enmity. There is no detailed discussion of the facts of the, case apart from those referred to above.
4-A. I may also refer to two other case's; one decided by the Federal Shariat Court and the other by the Supreme Court of Pakistan. After elaborate discussion of meaning of the word "attempt", it was held in Muhammad Aslam v. The State (PLD 1985 F SC 292) that the person, v. Ho trespassed at mid-night into the house of the prosecutrix, went to her cot, untied the Azarband of the Shalwar and started was clearly guilty of attempt to commit Zina.In the other cae, captioned Ghulam Haider v. The State (1983 SC MR 842), it was held that an accused catching hold of breasts of a woman and removing her Shalwar as well as his loin cloth was guilty of attempt to commit sexual intercourse with the victim and that the offence fell under section 18 read with section 10 of Ordinance No,VII of 1979 and not under section 354 of the P.P.C.
5. In the present case, the petitioner found Mst. Noor Jehan all alone in the fields, held her in the Japhha, kissed her face and broke the string of her Shalwar and then dropped her on the ground and attempted to commit Zina-bil-Jabr with her. The prosecutrix resisted, raised hue and cry and was luckily saved due to arrival of P.Ws. These facts, prima facie, constitute an attempt to commit Zinabil-Jabr. The offence under section 18 of the Offence of Zina (Enforcement of Hudood)
Ordinance No,VII of 1979 falls under the prohibition of section 497 of the Cr.P.C.
5-A. For the foregoing reasons, I do not find any merit in this petition, which is dismissed.