' This writ petition has been filed for the quashment of case F.I.R. No,397 of 1999 registered on 4-10- 1999 under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 at Police Station City, Rajanpur.
2. The facts giving rise to the present writ petition are that complainant/respondent No,2 got registered the abovesaid case against the petitioner and one Mst. Rifat Parveen daughter of Muhammad Ramzan, resident of Ward No,1, Fazilpur. The complainant alleged that on 4-10-1999 at about 3.00 p.m. He alongwith Ghulam Akbar was in search of a house on rent. When they reached at Bodla Colony an unknown person told them that house of one Ghulam Akbar Jaskani is available on rent. The complainant and Ghulam Akbar reached at the said house, where they found the main gate of the boundary wall opened. Both of them went inside the courtyard and found the door of the house closed. They heard whispering from inside the room. They peeped through the hole of the door and saw that a boy and a girl while having their Shalwar off were laying on a cot. The complainant showed this scene to Ghulam Akbar and asked him to inform the neighbourers, who went outside the courtyard and met with Rao Riaz, District Editor, Daily Khabrain, who brought them to the spot. They also witnessed the occurrence. Then all the four persons pushed the door inside which became open due to loose bolting. They saw that Sanlain Akbar and Mst. Rifat Parveen were lying on the cot while their Shalwars were off. Both these persons on seeing the witnesses put on their Shalwars and started abusing the complainant and his other companions. They caught hold of these two persons and produced them before the police.
3. Learned counsel for the petitioner contended that the act of the complainant and his companion is in violation of principle of Qur'an and Sunnah. Neither any person can peep through the wall, window and door nor anybody can enter into the house without permission of the residents.
Learned counsel referred the Hadieth of Holy Prophet (p.b.u.h.). He further contended that according to the contents of the F.I.R. Offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) is not made out against the petitioner. He further contended that the complainant and his companions have not witnessed the petitioner and the girl in attempting the offence of Zina. He further argued that the petitioner was in possession of preparation only and the preparation is not the offence of committing the offence of Zina. He relied on cases of Shaukat v. The State PLD 1982 FSC 179, Mst. Ehsan Begum v. The State PLD 1983 FSC 204, Mst. Akhtar Parveen v. The State PLD 1997 Lahore 390, Muhammad Mahmood Ahmad v. The State 1995 PCr.LJ 444, Muhammad Saleem and another v. The State 1988 PCr.LJ 2321 and Mian Muhammad Abbas Sharif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior and 2 others 1995 PCr.LJ 1224. He further contended that privacy of home is guaranteed under Article of the Constitution which has been violated by the complainant and his companions.
4. On the other hand, the learned counsel for the State vehemently opposed the arguments of the learned counsel . For the petitioner and supported the F.I.R.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. The allegation against the petitioner is that he was lying naked with a naked woman on a cot.
Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979) has provided 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 extent 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."
7. The 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. "Attempt" signifies, an act which if successful would amount to commission of offence. Offence of rape being an offence requiring actual penetration, attempt at rape must be an attempt at penetration involving catching female in such manner that penetration might be facilitated. As between removal of Shalwar of male and female and actual coitus some step to lay female, or at least to catch her necessary so as to bring her to position in which coitus may be possible. Any act through not proximately last which assumes such dangerous proposition that in natural course of business it must, if not interrupted by extraneous interference, result in commission of design would also be attempt but accused must have taken steps beyond preparation. Striping of girl with intention to commit rape cannot as a rule be always treated as an attempt to commit rape. Removal of trousers of each male and female being an act of preparation only in case where parties agree to commit Zina, no reason why stripping oneself and female naked in a case of rape be treated more than preparation. Lying naked by two opposite sex on a cot without taking any other step towards the commission of offence would be an act of preparation only. This principle was discussed by his lordship Mr.Justice Sh. Aftab Hussain, the Chief Justice of Federal Shariat Court (then he was) in case of Shaukat v. The State (supra).
8. The Federal Shariat Court in case of Muhammad Saleem and others v. The State (supra) has observed that mere kissing and embracing each other are not attempt to commit Zina, but at the most an intention to commit Zina and intention to commit Zina, is not an offence. In the instant case if, this case can be taken on from this aspect of the case that the petitioner and the woman having intention to commit Zina even then they cannot be punished for mere intention to commit Zina.
9. The complainant had seen the petitioner and Mst. Rifat Parveen in naked position peeping through a hole of the door, such practice of peeping or searching for sins of others had been disapproved or deprecated in Islam and it has been observed in case of Muhammad Mehmood Ahmad v. The State 1995 PCr.LJ 444. That if the registration of cases under the Ordinance on the allegation of such peeping through continued police could yield too long a handle and the objects of the Ordinance would be defeated. Mere presence of two opposite sexes in naked position without performing any other act to the commission of the offence of Zina cannot be taken a party to commit Zina. The story of the prosecution in the instant case is put by the chance witnesses to the effect of seeing the petitioner and Mst. Rifat Parveen lying on a cot in naked position was not reliable when the door of the room was not bolted properly.
' It has been pointed out by the learned State Counsel that the District Attorney had also given his legal opinion and recommended for the cancellation of the case and he had returned the file of the case to the police to do the needful, for the reasons best known to the police; the case has neither been cancelled nor the challan of the case has been sent to the Court for trial so far.
For the foregoing reasons, I am of the considered view that no offence of attempt to commit the offence of Zina is made out from the contents of the F.I.R., therefore, this petition is accepted and F.I.R. No,397 of 1999 dated 4-10-1999 is declared to have been registered without lawful authority and of no legal effect, hence quashed.