' The petitioners have been charged vide F.I.R. No,295, dated 7-12-1994 under section 354/506/34, P.P.C. Read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Kot Najibullah.
2. The brief facts of the case are that complainant Mst. Saeeda Bibi who had gone to visit the house of her sister was coming back from there on 6-12-1994 at about 9-30 a.m. When she reached the scene of occurrence, which is situated in Kot Najibullah, the petitioner (Asif and Ilyas) were standing near the canal. On seeing her they rushed towards the complainant and caught hold of her from breasts and started pulling her towards a nearby "Kassi" in order to commit Zina with her.
The complainant shouted for help and requested that her honour/modesty be saved. As a result of this hue and cry P.Ws. Mst. Razia and Mst. Sarwar, the residents of the nearby houses, were attracted to the spot and they rescued her from the clutches of the petitioneRs, P.W. Ashfaque Ahmed had also arrived there, who happens to be the brother-in-law of the complainant, and tried to rescue her. He was beaten by the petitioners in the process. It appears that thereafter the accused decamped from the scene of occurrence. The occurrence took place at 9-30 a.m. On 6- 12-1994 and the report was lodged in the police station on 7-12-1994 at 21-00 hours in Police Station Kot Najibullah by the complainant-respondent No,2. At that time the complainant was accompanied by her husband Mushtaq Ahmad. The petitioners were arrested on 11-12-1994.
3. After having failed to procure bail from the Magistrate 1st Class and the Sessions Judge, Haripur the petitioners have knocked at the door of this Court for the redress of their grievance.
4. The learned counsel for the parties heard. Record of the case perused carefully.
5. The learned counsel for the petitioners submitted at the bar that there was nothing on the file to suggest that the case of the petitioners falls under section 18 of the Offence. Of Zina (Enforcement of Hudood) Ordinance, 1979 and that therefore, their case did not fall under the prohibitory clause of section 497, Cr.P.C. And as such they were entitled to be released on bail. He stated that in case reported in Haider Ali Malik v. The State PLD 1987 Lah. 412 where the accused had caught hold of the victim from her arm and had asked her to accompany him to a nearby field, it was held that he was still in the preparation stage and that after having been slapped, out of anger, he had torn her shirt, that his act of tearing the shirt was also not considered as an attempt for committing Zina and the learned Judge of the Lahore High Court, His Lordship Mr. Justice Mazharul Haq, released the accused on bail. He further stated that in another case reported in Syed Shakeel Ahmad v. The State 1989 PCr.LJ 646 where the accused was charged for having tried to unfasten the Shalwar of the victim, a learned Judge of the Lahore High Court, His Lordship Mr. Justice Muhammad Munir Khan, had come to the conclusion that the offence did not fall under the prohibitory clause of section 497, Cr.P.C. And as such he had released the accused on bail.
6. He then referred to another case reported in Muhammad Altaf v. The State 1989 ALD 157(2) wherein it was alleged, by the prosecution that the accused had allegedly dragged her in order to subject her to sexual intercourse, the learned Judge of Lahore High Court, His Lordship Mr. Justice S.M. Zubair, had held that since the accused had not taken off his clothes nor the prosecutrix was made naked, therefore, he was of the opinion that the case against the accused was that of further inquiry and accordingly he had released the accused on bail.
7. Reliance was also placed on a case reported Waris Ali and another v. The State 1984 PCr.LJ 2179 wherein His Lordship Mr. Justice Muhammad Munir Khan a Judge of Lahore High Court, had granted pre-arrest bail to the accused in the case in which the prosecutrix had charged him for dragging her in order to subject her to sexual intercourse. He contended that the learned Judge came to this finding because of the. Fact that the victim was not made naked.
8. In these circumstances, he submitted that there was nothing on the record of the present case to suggest that the clothes of the prosecutrix (respondent No,2) were either torn or were taken off by the petitioners and as such their case was that of further inquiry and they were entitled to be released on bail. He also referred me to the fact that the prosecutrix had not been medically examined and that there were some contradictions in the statements of the P.Ws. In respect of the occurrence.
9. On the other hand, the learned counsel for complainant (respondent No,2) stated that there was no enmity or ill-will between the complainant and the petitioners, therefore, she had no motive, whatsoever, to falsely implicate the petitioners in a case like the present one. He stated that it is inconceivable that respondent No,2 or her husband would go to the extent of inviting indelible stigma upon their honour and the honour of their family by involving themselves in such an ugly affair. The testimony of the victim, he submitted inspires confidence, is worth believing and reliance can be placed on it safely. Besides, he stated that two most natural and disinterested P.Ws., whose houses are situated near the place of occurrence have supported the version of the prosecutrix in toto who too had no motive to give false evidence. The learned counsel further stated that the petitioners' action of catching the prosecutrix from her breasts and then pulling her towards the "Kassi" consisted of series of acts, which were definitely of concentrated efforts towards the fulfilment of their nefarious design of committing Zina-bil-Jabr with her and that this fact could not be termed just an assault or use of criminal force to outrage her modesty. According to him if the action of the petitioners is seen in its entirety it would come to light that it was an attempt to commit Zina-bil-Jabr. In this respect he placed reliance on case reported Maqsood Ahmad alias Soda v. The State 1993 MLD 2361. Thereafter, the learned counsel for the complainant referred to me a case Criminal Miscellaneous No,162 of 1994, wherein His Lordship, Mr. Justice Mian Muhammad Ajmal, of Peshawar High Court, Peshawar has held:-- "After hearing the learned counsel for the parties and going through the record of the case I am of the opinion that as the charge goes the petitioner physically assaulted a lady by catching hold of her breasts therefore, his intention is to be construed from this act that he had mala fide design but on the hue and cry of the complainant he ran away, therefore, he is not entitled to the concession of bail. The defence version that the petitioner has been falsely implicated is also fallacious as no honourable lady would bring a stigma of dishonour to herself by lodging such a report. This application is, therefore, dismissed."
10. It may also be mentioned that the learned counsel for the petitioners had alleged, at the bar, that the case of the petitioners is that of further inquiry in the circumstances and the petitioners were entitled to be released on bail. I do not find myself in agreement with the learned counsel for the petitioner on this score. It was held by Their Lordships of the Supreme Court of Pakistan (Mr. Justice Muhammad Afzal Zullah, C.J. And S. Usman All Shah, J.), in case reported in Mst. Nasreen v.
Fayyaz Khan and another PLD 1991 SC 412 as under:-- "S.497---Bail---" Further Enquiry", Held, there would hardly be a case which would not require "further inquiry" therefore, this element by itself was no ground for granting bail under S.497(2), Cr.P.C.---Such order granting bail on the very face was illegal which did not fulfil the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused.
11. Having gone through the record of the case, hearing the learned counsel for the parties and the case-law produced at the bar, and without dilating upon the merits of the case at this stage, I am convinced in my mind that reasonable grounds do exist for believing that the petitioners are connected with the commission of the offence with which they have been charged. They are accordingly not entitled to be released on bail. This bail petition is rejected, with the direction that the prosecution shall submit complete challan in the trial Court within a period of 10 days from the receipt of record. The trial Court is also directed to conclude the trial of case within two months positively.