MUHAMMAD NAEEM HASHMI Versus THE STATE

ORDER

The records of investigation have again not been received. The learned counsel for the State intimates that the concerned police authorities have been intimated for production of the records through wireless message, but they have failed to turn up. In the circumstances, the disposal of the under consideration bail application cannot be delayed indefinitely for want of records.

2. The petitioner, Mohammad Aslam, is involved in a case under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, read with Section 452, P.P.C., arising out of F.I.R. No. 112 dated 9‑12‑1987, registered at Police Station, Hadiara, Lahore.

3. It has been alleged that during the night between 8th and 9th of December, 1987 at about 5.00 a.m., the prosecutrix, Mst. Kaneezan Bibi, came into the compound of her house to urinate. She sat alongwith a wall of the compound to ease herself that all of a sudden, the petitioner emerged in the compound, after having scaled over the compound wall. He secured her in his clasp and felled her down. He wanted to subject her to `Zina' by lying over her, but she raised alarm whereupon her father, mother and brother came running to the compound. The petitioner on seeing them ran away from the scene of occurrence.

4. From the allegations contained in the F.I.R. as detailed above, it appears that the offence of attempt to commit Zina is not made out. The petitioner was allegedly still preparing for the attempt that the relations of the prosecutrix came to the scene of occurrence. The petitioner at the most can be said to have outraged the modesty of the prosecutrix by felling her down on the ground. He is also allegedly liable for criminal trespass into the house as he entered the courtyard of the house of the prosecutrix by scaling over the wall. Both these offences do not fall within the prohibitory clause. In Syed Mohammad Saqib v. The State (1984 P Cr. L J 2768), it was ruled that the accused caught hold of the complainant in order to subject her to rape but before he could do something more, witnesses reached on her alarm and the accused ran away. It was held that the question that if the guilt of the accused amounted to attempt to commit Zina required further enquiry. Resultantly, the accused was allowed bail.

5. In the light of the circumstances of the present case, the question that if the offence allegedly committed by the petitioner amounts to an attempt to commit Zina, punishable under Section 18 of Ordinance VII of 1979, requires further enquiry. The petitioner is, therefore, admitted to bail in the sum of Rs. 20,000 (twenty thousand) with one surety in the like amount to the satisfaction of Assistant Commissioner Saddar, Lahore.

M.Y.H./M‑628/L Bail granted.