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Petitioner: ASGHAR ALI VS Respondent: STATE
1988 S C M R 1930
1988 S C M R 1930
[Shariat Appellate Bench]
Present: Shafiur Rahman, Pir Muhammad Karam Shah and Muhammad Taqi Usmani, JJ
ASGHAR ALI‑‑Petitioner versus THE STATE‑‑Respondent
Criminal Petition for Leave to Appeal No.56‑R(S) of 1988, decided on 8th August, 1988.
(From judgment of Federal Shariat Court, dated 4‑4‑‑1988 passed in Criminal Appeal No.20/L of 1988).
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑
‑‑‑Ss.10 & 18‑‑Penal Code (XLV of 1860), 5.295‑‑Zina liable to tazir‑ Attempt‑‑Factual narration of occurrence by victim and eye‑witnesses clearly making out a case of attempt‑‑Conviction and sentence not requiring any further examination‑‑Leave to appeal against conviction and sentence refused.
Rafiq Javed Butta, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 8th August, 1988.
JUDGMENT
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.
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.
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.
We have heard the learned counsel for the petitioner and gone through the record. What the victim of the crime stated was as follows: ‑‑
"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."
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:‑‑
"The accused was leaning on Mehnaz wildly and thus we felt no difficulty to determine that he was trying to commit Zina with her."
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.
M.Y.H./A‑313/S Leave to appeal refused.