' Petitioner Muhammad Shafique son of Muhammad Gulzar, caste Khawaja Kashmiri, resident of Dhamtaur, Police Station Nawanshehr, Tehsil and District Abbottabad has been charged for having committed "Zina-bil-Jabr" with Miss Hifza, a small girl of about 9/10 years of age daughter of Maulvi Abdul Aziz, caste Qureshi, resident of Mohallah Sheikhan, Dhamtaur, vide F.I.R. No,192, dated 6-8- 1994 lodged in Police Station Nawanshehr, under section 6/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. It is apparent, from the record, that the petitioner (accused) was arrested by the police on 7-8- 1994. He submitted his bail application before the Magistrate concerned which was turned down on 22-8-1994.
3. Not contended with the said order of the Magistrate, the petitioner (accused) moved an application to the Court of learned Sessions Judge, Abbottabad and prayed therein that he be released on bail. The learned Sessions Judge, however, by his order, dated 1-9-1994, dismissed his - bail petition. Hence this petition for bail by the petitioner (accused).
4. I have heard Mr. Masood-ur-Rehman Khan Tanoli, Advocate learned counsel for the petitioner (accused) and Mr. Sultan Ahmed Jamshed, Advocate learned counsel for the State assisted by Mr. Khan Afsar Khan, Advocate learned counsel for the complainant and have also gone through the record of the case carefully.
5. Since, to my mind, the medico-legal report was not very clear, therefore, the Lady Doctor Shamim Nisar, who had examined the victim (minor girl of 9/10 years) in the present case, was summoned and her statement was recorded on oath. The same is reproduced as under:-- "I have seen my report dated 7-8-1994. No sexual intercourse has taken place in this case. Only an attempt was made."
6. The punishment prescribed under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (Ordinance VII of 1979) is:-- "10(3). Whoever commits Zina-bil-Jabr liable to Tazir shall be punished with imprisonment for a term which may extend to twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes."
7. Section 18 of the said Ordinance prescribes punishment for attempting to commit an offence and is reproduced here for the sake of convenience:-- "18. Punishment for attempting to commit an offence.--- Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extended to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence or with any two of, or all, the punishment."
8. From a perusal of medico-legal report coupled with the statement of Lady Doctor Shamim Nisar, recorded on oath today in the Court, it is apparent that an attempt was made by the petitioner (accused) to commit "Zina-bilJabr" with the minor girl of about 9/10 years of age, and therefore, his case would fall under the prohibitory clause of section 497, Cr.P.C.
9. The kontention of the learned counsel for the petitioner that the report was lodged after a considerable delay and as such the prosecution case against the petitioner-accused has become highly doubtful, is without any substance in the circumstances of the present case. I do not want to go deep into the merits of the case at this stage because this may not influence the trial of the petitioner-accused. However, after having gone through the record of the case carefully, ex facie I find that reasonable grounds do exist for believing that the petitioner (accused) is connected with the commission of the offence with which he has been charged and thus not entitled to be released on bail.
10. The bail petition is accordingly rejected. The prosecution is, however, directed to submit complete challan against the petitioner (accused) in the trial Court within a period of one month i,e, on or before 30th November, 1994.