MUHAMMAD KHAN Versus STATE

ORDER

1. NASIM HASAN SHAH, J.‑ This petition for leave to appeal is directed against the judgment, dated 30‑I1‑1983 passed by a learned Single Judge of the Federal Shariat Court, whereby he dismissed the appeal preferred by the petitioners herein, directed against the judgment, dated 9‑5‑19 3 passed by the Additional Sessions Judge, Sargodha, whereby Muhammad Khan and Maqbool, petitioners, were convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the former, Muhammad Khan petitioner, sentenced to four years' R. I. plus ten stripes, while the latter, Maqbool petitioner sentenced to two years' R. I. plus five stripes.

2. The case of the prosecution briefly was that, on 10‑8‑1981, Mst. Amana P. W. 3. aged 16/17 years, the daughter of the complainant, was coming home after washing clothes from Rajbah Kalra when she was accosted by the petitioners, who caught hold of her. Muhammad Khan, petitioner, seized her breasts and bit her face with his teeth. When she tried to save herself, Petitioner No. 2 removed her loin cloth from her person. During the struggle, the shirt of Mst. Amana was also torn and she became naked. On her raising an alarm, Ghulam Muhammad son of Fateh Muhammad, P. W. 4, and one Muhammad Khan son of Fateh Muhammad reached the spot and witnessed the occurrence. On seeing the P Ws., the petitioners fled away. While running away from the spot they took the loin‑cloth and the Dopatta of Mst. Amana Bibi alongwith them. The P. Ws. gave a Chadar to Mst. Amana Bibi, who wrapped her person with it and returned home covered with that Chadar. The father of Mst. Amana, Ghulam Muhammad complainant, was not in the house when she returned, as he had gone to Jhawarian to make certain purchases. On his return, Mst. Amana P.W. 3 apprised him of the entire occurrence and the report was lodged with the police, who investigated the case, arrested the petitioners and brought them to trial, which eventually led to their conviction and sentence.

3. We have heard the learned counsel for the petitioners and also perused the relevant record arid are fully satisfied that the prosecution has succeeded in establishing the guilt of the petitioners, beyond any reasonable doubt.

4. The only question, which caused us some concern, was whether, in view of all the circumstances, the petitioners' offence fell under section 354, P. P. C. or it fell under section 18 of the Ordinance, found by the Courts below.

5. After considering all the relevant circumstances and giving this matter some thought we consider that the view expressed by the learned Judge of the Federal Shariat Court that the nature of the injuries caused upon Mst. Amana, the place where they were caused‑on the cheeks and a linear abrasion on her leg ‑ the conduct of the petitioners and the manner, in which they acted, alia indicated that their intention was to commit the Zina with Mst. Amana, which intention was frustrated by the arrival of the P. Ws. on the spot, was correct. Therefore, their conviction under section 18 of the Ordinance was justified and not liable to be interfered with.

6. The upshot is that this petition must fail and is, accordingly, hereby dismissed.

7. M.Z. M. Petition dismissed.