' This appeal is directed against judgment dated 3-12-1995 passed by learned Additional Sessions Judge, Chichawatni, District Sahiwal whereby the appellants were convicted under section 18 read with section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) and sentenced to 5 years' R.I. And 15 stripes each.
2. The case was registered against the appellants vide F.I.R. No,57 of 1995 dated 1-4-1995 under the aforementioned sections 18 and 10(3) of the Ordinance recorded on the statement of Mst. Shamim alias Shama P.W.3, the victim who is resident of Chak No,24/14-L. The statement was made by the aforementioned prosecutrix before A.S.-I. Ashiq who was on patrol duty near Murad More. The occurrence according to the F.I.R. Took place at 12-00 noon on 31-3-1995 in the area of Chak No,19/14-L at a distance of 3 miles from the police station. The F.I.R. Was registered on 1-4-1995 at 6- 30 p.m. In Exh.PA and Exh.PA/1 the statement of the complainant and formal F.I.R. It has been mentioned that the husband of the complainant had gone to earn his livelihood, and, therefore; the complainant was living with her father Hamayoon in Chak No,24/14-L. The allegation was that on the day of occurrence the complainant and her younger sister Nasreen aged about 10 years and her brother Fayyaz Ahmad aged about 8 years went to Chak No,19/14-L for paying homage to the Darbar of Baba Shah Nawaz. On return the brother and the sister of the complainant went to pick 'Bair' from a tree in the wheat crop. The complainant for some time waited on the metalled road and after sometime started towards the wheat crop to fetch them but at a short distance the two appellants Chiragh and Ashraf who were known to her caught her from arms, took her inside the wheat crop and forcibly laid her on the ground. Chiragh accused placed his hands on her mouth while Ashraf tried to forcibly open the string of her Shalwar and attempted to commit Zina with her.
The complainant struggled and managed to raise alarm to save her honour. The alarm attracted her brother and sister who also raised alarm which attracted Liaquat P.W.2 and Ghulam Muhammad. The appellants managed to escape. The occurrence was narrated by the complainant to her father the same night on his return. She did not go to the police station the same day as she was alone and the matter was reported the next day. The challan against the appellants was put up in the Court and on their claiming trial the prosecution examined 4 witnesses namely Sakhawat Khan, P.W.1, who recorded the formal F.I.R. Exh.PA on the statement of complainant, Liaquat Ali P.W.2 an eye-witness, Mst. Shamim P.W.3 the victim and Ashiq A.S.-I. P.W.4 who recorded the statement of Mst. Shamim Exh.PA/1 and partly investigated the case.
3. The statements of the appellants under section 342, Cr.P.C. Were recorded wherein they denied allegations and merely took the plea that the case against them was based, on enmity. They did not opt to make statement under section 340(2), Cr.P.C. And also declined to produce and defence evidence. On conclusion of the trial and after hearing the arguments of the parties and examination of the prosecution evidence, the learned trial Court found the appellants guilty of the charges levelled against them and convicted them under section 18 read with section 10(3) of the Ordinance and sentenced them as mentioned above.
4. The learned counsel for the appellants contended:-- ' First, that keeping in view the prosecution evidence the case against the appellants at the best falls under section 354, P.P.C. And as such the conviction under section 18 read with section 10(3) of the Ordinance is not warranted. He relied in this regard on Yaseen v. State, PLD 1983 FSC 53 and Anwarul Haq v. The State PLD 1983 FSC 234; ' secondly that Liaquat P.W.2 and P.W.3 the victim are related to each other and their evidence should not be relied upon. It was also urged in this connection that Liaquat is also a chance witness only; and ' thirdly, that the recording of statement of the victim at a place other than the police station creates doubts as regards the prosecution version.
5. On the other hand the learned counsel appearing for the State has submitted that a bald plea of enmity has been taken by the appellants in defence which is not in any manner established on record, and therefore, the prosecution version should be taken as correct.
6. It was next contended by the learned counsel for the State that a serious attempt to commit Zina with the complainant had been made by the appellants and not only her Shaiwar was being removed forcibly but her shirt was also torn and she would have been subjected to Zina but for the timely intervention of the witnesses. He submitted that the cases relied upon by the learned counsel for the appellants are not applicable to the facts of the case in hand and referred to Shaukat v. The State reported as PLD 1982 FSC 179, a Full Bench judgment where in the similar situation the attempt was held covered by section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
7. I have given anxious consideration to the controversy involved and having examined the evidence on record I find that the conclusions reached by the learned trial Court are unexceptionable. A correct finding has been recorded that the appellants had made serious attempt to commit Zina with the prosecutrix and, therefore, the appellants are guilty under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The sentence awarded is also not excessive and does not call for interference.
8. The judgments relied upon by the learned counsel for the appellants in support of the contention that the case falls under section 354, P.P.C. And not under sections 18 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are distinguishable on facts in that in the case in hand the shirt of the victim had been torn, she was forcibly laid on the ground, one of the accused put his hands on her mouth while the other tried to open the string of her Shalwar which shows that but for the intervention of the P.Ws. Who reached on the alarm raised by the victim, her brother and sister the appellants would have fulfilled their design. The very fact that the two appellants who are strong young males took a lonely lady with force and made the attempt as mentioned above leaves no room for doubt that there was a serious attempt to commit Zina with her. Applying the Full Bench judgment cited by the learned counsel for the State i,e, PLD 1982 SC 179 to the facts of the case in hand there appears no reason to hold that the intention was of molestation or that the facts can constitute molestation.
9. By virtue of section 511, P.P.C. Attempts to commit an offence have been made punishable and, therefore, the word "attempt" will have to be considered in each case according to its attendant facts and circumstances. The word "attempt" as defined in the Chamber's 20th Century Dictionary means "any act that can fairly be described as one of a series which, if uninterrupted and successful would constitute a crime". The word has also been defined in other dictionaries in almost similar terms as above.
10. It may also be observed that in a community of Muslims like ours the attempts of the nature as mentioned above can in no manner be termed "molestation" as mentioned in section 354, P.P.C.
The word "molest" has been defined in Chamber's Twentieth Century Dictionary as "to interfere with in troublesome or hostile way; "to annoy". Similarly in the Shorter Oxford English Dictionary molestation has been defined as "the action of molesting; annoyance, disturbance, vexation". Now keeping in view the meaning assigned to the word attempt and to the word molestation, can it be said that the manner in which the prosecutrix was taken to wheat field where she was forcibly held by two strong young men, laid on the ground with one of them shutting her mouth and the other forcibly trying to open the string of her Shalwar and in the struggle her shirt was torn was only a molestation i,e, annoyance or fixation or an interference with her in a hostile way? The whole series of the above acts to my mind clearly lead to the only answer and legitimate interference that the appellants had the clear intention to commit the offence under which they have been convicted.
11. In an Islamic society in which the Islamic social and cultural values are being mauled up, such a mild interpretation of words which constitute serious offences as in the case in hand would only give an impetus to immorality and pollution of social values. It also exposes the innocent womenfolk of the country to grave hazards of criminal assaults by unscrupulous and bad characters of the society. In view of the growing rate of crimes especially in the field of sex there is no escape from interpreting the relevant provisions of law in the strict manner and to apply them firmly in order to achieve peace in the society and to create an atmosphere in the country which ensures respect, honour and dignity for female sector of the country which are their inalienable rights as conferred by Qur'an, Sunnah and the Constitution.
12. In view of the foregoing discussion I have no hesitation in upholding the impugned judgment.
Resultantly this appeal being without merit is dismissed.