ASGHAR ALI Versus STATE
The petitioner sought leave to appeal against a judgment of the Federal Shariat Court, which had dismissed his appeal against convictions under Section 10 read with Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Section 295 of the Pakistan Penal Code 1860. The prosecution established that the petitioner forcefully took a minor girl into a mosque under construction, removed her clothing, laid her on the floor, and leaned on her wildly before witnesses arrived upon her shrieks. The core legal question was whether the petitioner's actions amounted to an 'attempt' to commit Zina-bil-Jabr or merely fell short of an attempt. The Supreme Court of Pakistan held that the factual narration clearly demonstrated an attempt to commit Zina-bil-Jabr, as the petitioner had moved beyond mere preparation to physical execution. Consequently, the Court found no justification for interfering with the conviction and sentence. Leave to appeal was refused.
- Whether taking off a victim's clothes and forcing her to lie down constitutes an attempt to commit Zina-bil-Jabr?
- Does leaning wildly on a minor victim after stripping her move beyond preparation to constitute an attempt under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 295, Pakistan Penal Code 1860
1. SHAFIUR RAHMAN, J.‑ ‑The petitioner convicted of the offence under section 10 read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and under section 295, P.P.C., seeks leave to appeal against the judgment of the Federal Shariat Court, dated 4‑4‑1988, whereby his appeal was dismissed.
2. The petitioner is reported to be of 23 years of age. On the 2nd of May, 1986, he is said to have taken away Mst. Mehnaz Akhtar aged 7/8 years with him to the premises of a mosque under construction, to have taken off her Shalwar and laid her prostrate on the ground and attempted to commit Zina‑bil‑Jabr. These facts were found established and for the first offence he was sentenced to five years R.I. with 10 stripes and a fine of Rs. 2000 and for the second offence he was sentenced to one year R.I. The two sentences were ordered to run concurrently.
3. Mr.Rafiq Javed Butta, Advocate, the learned counsel for the petitioner has contended before us that on the allegations made particularly by Shafqaat Ahmad that all that the petitioner did was that he was leaning on Mehnaz wildly, no case of attempt is made out at all and conviction and sentence is not proper. He relied on Mureed Ahmad v. The State 1985 S C M R 997.
4. We have heard the learned counsel for the petitioner and gone through the record. What the victim of the crime stated was as follows: ‑‑
5. "The moment' I entered the mosque, the said man followed me. He removed my Shalwar forcefully and forced me to lie on the floor. I started hue and cry, when the said man attempted to commit Zina with me (putha kam). Talib and Shafqaat P.Ws. were attracted on my shrieks to the place of occurrence."
6. The witness was not questioned to elicit what sort of an attempt was made and how far it had gone. Even the statement relied upon by the learned counsel is to the following effect:‑‑
7. "The accused was leaning on Mehnaz wildly and thus we felt no difficulty to determine that he was trying to commit Zina with her."
8. The factual narration of the occurrence clearly makes out case of attempt and the conviction and sentence both do not require any further examination. Leave to appeal is, therefore, refused.
9. M.Y.H./A‑313/S Leave to appeal refused.