1. ' MUHAMMAD YOUNAS SURAKHVI, J.--- This appeal is directed against the order of the Shariat Court of Azad Jammu and Kashmir, dated 25-9-1994, whereby the revision petition filed by the appellant, herein, against the order of Tehsil Criminal Court, Mirpur, dated 2-5-1994 was dismissed.
2. ' The precise facts of the case are that on the report of Akram Hussain, Inspector S.H.O. Police Station City, Mirpur a case under section 18 of the Offence of Zina (Enforcement of Hudood) Act, 1985 (hereinafter to be referred as the Act), was registered against the appellant and Mst. Ghazala, pro forma-respondent. It is alleged in the F.I.R. That the first informant alongwith other members of the police force and S.D.M. Magistrate 1st Class, Mirpur on the basis of secret information at 1-45 a.m. In between the night of 19/20th May, 1993, raided Room No,105 of Hotel Al-Jabeer, Mirpur and found a young man and woman in the room. Their whereabouts were inquired by the police in presence of Magistrate who disclosed their names and addresses and pretended themselves to be husband and wife. However, they could not substantiate their claim of being husband and wife and as such a case under section 18 of the Offence of Zina Act was registered against them and challan to this effect was presented before the Tehsil Criminal Court, Mirpur on 31-5-1993.
3. ' The appellant moved a petition under section 249-A, Cr.P.C. Before the trial Court on 22-1-1994 for dismissing the challan and acquitting him on the ground that from the facts available on record no prima facie case appears to have been made out against him as alleged by the prosecution. The petition was dismissed by the trial Court vide its order, dated 2-5-1994. The legality of the aforesaid order was challenged by way of a revision petition before the Shariat Court which was dismissed vide its impugned order, dated 25-9-1994 on the ground that a prima facie case connecting the accused with the commission of offence alleged to have been committed, appears to have been made out. Hence this appeal.
4. ' We have heard the learned counsel for the parties and perused the record made available with care. It has been vehemently contended by Ch. Riaz Alam, the learned counsel for the appellant, that keeping in view the facts and circumstances of the case no prima facie case is made out against the appellant. He maintained that there is no material on record suggesting that any preparation or overt act was made by the accused for the commission of offence of Zina. He further maintained that during the investigation made by the police it nowhere appeared from the record that the accused-appellant kidnapped or abducted the woman with the intent that she may be compelled or knowing it to be likely that she will be compelled, to marry the accused against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
5. ' On the basis of the aforesaid premises it was maintained by the learned counsel for the appellant that the police has not challaned the accused under sections 10 and 11 of the Act, as such the proceedings against the accused may be dismissed.
6. ' On the other hand Mr. Muhammad Akram Mughal, the learned Additional Advocate-General appearing on behalf of the respondent, strenuously argued that both the accused pretended themselves to be as husband and wife which ultimately proved to be otherwise during the police investigation. His contention precisely is that both the accused secured a room in hotel Al-Jabeer and were found together by the police in presence of Magistrate. He referred to the statements of P.Ws. Qazi Muhammad Razaque, a Manager and Agha Salim Abbas the servant of hotel Al-Jabeer and Mr. Fiaz Ahmed Abbasi, S.D.M. Magistrate 1st Class, Mirpur, recorded by police under section 161, Cr.P.C. Whereby they deposed that the accused secured the room of the hotel pretending themselves to be husband and wife and were found from the room at about 1-45 a.m. According to the learned counsel for the respondent the above collected material by Investigating Agency prima facie sufficiently constitutes the offence under section 18 of the Act.
7. ' We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care.
8. ' At the very outset it may be pointed out that in the instant case the police has not challaned the accused under sections 10 and 11 of the Act. Although it has been mentioned in the report under section 173, Cr.P.C. That the accused-appellant on the pretext of marriage enticed Mst. Ghazala pro forma-respondent No,2 and brought her from Jhelum to Mirpur for the purpose of committing illicit intercourse with her and secured a room in hotel Al-Jabeer but unfortunately there is no material existing on record with regard to this aspect of the matter. Not a single word has been uttered by any of the P.Ws. In this regard whose evidence has been recorded by the police under section 161, Cr.P.C. The reason for not challaning the accused under section 10 A or 11 of the Act seems to be obvious, as said earlier, because no evidence was collected by the Investigating Agency in this regard.
9. ' So far as the commission of offence under section 18 of the Act is concerned we deem it useful to reproduce section 18 of the Act which reads as under:-- 'Punishment for attempting to commit an offence.--Whoever attempts to commit an offence punishable under this Act 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 extend 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 punishments."
10. ' The words "attempt to commit an offence" have not been defined in the Act. For this purpose we will have to revert to section 511 of the Penal Code wherein the particulars and ingredients of the offence "attempt" are almost the same as have been given in the Act. The plain reading of both the provisions postulates that to constitute an "attempt" there must be evidence of some overt act. An attempt is complete if the accused does an act which is a step towards the commission of the specific crime which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime. A person makes an attempt to commit a particular offence when
(i) he intends to commit that particular offence; and (ii) he having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence. In other words attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime. An attempt consists in the intent to commit a crime, combined with the going of some act adapted to, but falling short of its actual commission. It may consequently be defined as that which, if not prevented, would have resulted in the full consummation of the act committed.
11. ' It follows that an accused is liable for attempt when his failure to commit an offence is not due to any act or omission of his own, but to the intervention of some factor independent of his own violation. The aforesaid view finds support from the authorities PLD 1970 Lah. 230, AIR 1961 SC 1698, PLD 1982 FSC 179, AIR 1962 All.
12. 359.
13. ' The word "attempt" in Black's Law Dictionary, Sixth Edition, has been defined as "an attempt" ordinarily means an intent combined with an act falling short of the thing intended. It may be described as an endeavour to do an act carried beyond mere preparation, but short of execution: An intent to commit a crime coupled with an act taken toward committing the offence. An effort or endeavour to accomplish a crime, amounting to more than mere preparation or planning for it, which, if not prevented would have resulted in the full consummation of the act attempted, but which in fact does not bring to pass the party's ultimate design. The requisite elements of an "attempt" to commit a crime are: (1) an intent to commit it, (2) an overt act toward its commission,
(3) failure of consummation, and (4) the apparent possibility of commission".
14. ' Keeping in view the aforementioned principles enunciated by various judicial pronouncements and the definition of the word "attempt" we are of the considered view that in the instant case the abovementioned prerequisites to constitute the offence are not only lacking but totally missing.
15. The mere fact D that the accused were found together from the room of the hotel does not constitute the offence under section 18 of the Act, particularly so when there is no evidence on record to reveal that they were doing some overt act or making preparations for the commission of offence.
16. ' The other important factor which may also be taken due notice by this Court is that the accused person secured the room at about 10-00 p.m. Whereas they were apprehended by the police at about 1-45 a.m. During the intervening period there is no evidence on record to substantiate that the accused did something towards the commission of the offence. There is also a medical report Annexure "G" appended with the file which reveals that according to the opinion of doctor Mst.
17. Ghazala is virgin and her hymen is intact. This also lends support to the conclusion that the offence as alleged by the prosecution does not appear to have been prima facie made out. In our considered view the continuation of proceedings against the accused will amount to humiliation in furtherance of wrong already done by the police.
18. Taking the instant case from an other angle even if we presume the whole evidence collected by the investigating agency and proposed to be produced against the accused by the prosecution to be true, in our estimation there is no likelihood or the probability of the accused being convicted for the offence charged. Section 249-A, Cr.P.C. Makes it clear like crystal that when the charge is groundless or that there is no probability of the accused being convicted, the Court may acquit him.
19. ' For the aforesaid reasons while exercising powers under section 249-A, Cr.P.C. We accept this appeal and set aside the impugned order of Shariat Court, dated 25-9-1994 and that of Tehsil Criminal Court, Mirpur, dated 2-5-1994. Accordingly we dismiss the challan pending before trial Court against the accused-appellant under section 18 of the Act. The appellant-accused is hereby acquitted of the charge.