Liaquat, aged about 30 and Ghulam Murtaza also aged about 30, were arrested on 27-3-1995, in pursuance of a case registered against them vide F.I.R. No.71/95, dated 7-3.1995, at Police Station Mitroo of District Vehari under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, regarding an occurrence which took place on 2-3-1995 at about 4 p.m. In the area of land belonging to one Muhammad Anwar which is about 6 miles from Police Station Mitroo of District Vehari.
2. The complainant Mst. Khatoon Bibi, aged about 40 years, a married woman, stated in the F.I.R.
That the petitioners tried to rape her and when she resisted they also inflicted injuries upon her.
3. Bail is sought on the ground that no offence under section 18 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is made out at all and that the offence allegedly committed by the petitioners fell within the purview of section 354, P.P.C.
4. In order to determine and decide the argument raised on behalf of the petitioners, a comparison between the two provisions in question becomes necessary.
Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, provides punishment for attempting to commit an offence and stipillates that:-- "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 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. "
5. Since the allegation in the present case is that the petitioners attempted to rape the complainant it. Zina or Zina-bil-Jabr in the language of the Ordinance, therefore, section 18 has to be read with subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, v4/which provides punishment for Zina or Zina-bil-Jabr liable to Tazir which reads as follows:-- "Section 10(1).---Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd, or for which proof in either of the forms mentioned in section 8 is not available and the punishment of Qazf liable to Hadd has not been awarded to the complainant, or for which Had may not be enforced under this Ordinance, shall be liable to Tazir.
(2)Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term, which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine.
(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. "
6. Section 354, P.P.C. Provides punishment for making an assault or using criminal force to any woman with the intention of outraging her modesty and reads as follows:-- "Section 354.---Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
7. An examination of these different provisions of two different statutes reveals that while section 18 envisages an attempt whereas section 354, P.P.C. Deals with a faith accomplice, i.e. Either assaulting or using criminal force with the intention of outraging the modesty of a woman.
8. The term "outrage her modesty" has not been defined presumably because it is beyond definition. It will depend necessarily upon the social and moral conditions in a given society and culture. In our society and culture, the mere act of forcibly removing the veil of a woman may tantamount to outraging her modesty. .
9. Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, visualises an attempt which if successful would be punishable under subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
10. An attempt has been explained by the Supreme Court in the case of Abdul Majid v. State reported in 1973 SCM R 108. In the context of an attempt to murder within the meaning of section 307, P.P.C. Their Lordships of the Supreme Court explained that an attempt to commit a crime consists of (i) the intent to commit the crime, (ii) performance of some act towards the commission of the crime, and (iii) failure to consummate its commission on account of the circumstances beyond the control of the offender. The test whether there has been an attempt to commit a crime, is factual one by reference to the three ingredients set out by their Lordships of the Supreme Court. Their Lordships were further pleased to observe that according to the accepted concept of attempt as an indictable crime, it means an intentional act with a view to attain a certain end but which is not achieved because of circumstances independent of the will of the offender who makes the attempt. Whether any given act or series of acts constitute a criminal attempt punishable under the penal law is a question of fact in each case, depending on the circumstances surrounding the act.
11. The Federal Shariat Court in the case of Shaukat v. State reported in PLD 1982 FSC 179 was pleased to hold that the test laid down by the Supreme Court in the abovementioned case was fully applicable to cases under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Federal Shariat Court observed that it was very difficult in cases under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to determine the penultimate or last act short of commission of offence and that for committing coitus there can be series of acts which may constitute attempt. Section 354, P.P.C. Visualises minor cases of indecent expression or gesture like touching a woman in a lewd or indecent manner.
12. The allegations levelled against the petitioners in the present case clearly fall within the mischief of section 18 read with subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. The offences allegedly committed by the petitioners fall within the prohibition contained in subsection (1)'of section 497, Cr.P.C. Which disentitles the petitioners to the grant of bail.
There is no merit in this petition, which is dismissed.