AJK Offence of Zina (Enforcement of Hudood) Act, 1985

S. 2 — Adult — In case of a male person, he shall be deemed to be adult if he has attained the age of 18 years or has attained puberty. Sheraz Mahmood v. The State & another 2006 SCR 39 (C)
Sentence — Reduction of — The case of appellant being covered by section 7 of Zina Act, his sentence is reduced to 5 years rigorous imprisonment along with punishment of whipping numbering 15 strips and a fine of Rs.15,000/- Sheraz Mahmood v. The State 2006 SCR 39 (F)
S. 10(3) — Whether the offence was of rape or attempt to commit rape — Question of — All the Courts below held that the offence was an attempt to commit rape — Medical report prepared by the Doctor P.W. stated that the hymen was not ruptured because generally the same is located high up in children and may remain intact despite rape, i.e. penetration. The doctor also stated that he got vaginal swabs of the minor victim and dead sperms were found in the same thus it was proved that Mst. Rizwana Parveen was actually raped and the findings of the Courts below that it was merely an attempt of rape is fallacious on the very face of it. The condition of the genital of the minor described by the doctor clearly establishes the penetration of the male organ into the vagina and thereby commission of offence of rape. Accused appellant held guilty, convicted and sentenced to five years rigorous imprisonment and also awarded punishment of whipping numbering 30 strips. Mst. Rehmat Bibi v. Muhammad Najib and another 1996 SCR 374 (A)
S. 10 (4) — See AJK Interim Constitution Act, 1974, S.42. State through Advocate-General, AJK, Muzaffarabad v. Talib Hussain and 2 others 2013 SCR (SC AJ&K) 192 (C)
Ss. 10/11, 16/18 — See Criminal Procedure Code, 1898, S. 56-A. State through Advocate-General, AJK, Muzaffarabad v. Safeer Khan and another 2013 SCR (SC AJ&K) 42
Ss. 10/16/19 — Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), S. 25 — Zina or Zina-bil-Jabr liable to tazir, enticing or taking away or detaining a woman with criminal intent — Bail, grant or refusal of — Criteria — All the co-accused, in the present case, were enlarged on bail — Application of accused for grant of bail was rejected by the Trial Court, but Appellate Court below granted bail on the ground that the matter was one of further inquiry — Complainant challenged the propriety of bail granting order in the Shariat Court, which was dismissed — Validity — Accused and alleged abductee had taken specific defence that they had contracted marriage and that they were also parents of a baby — No final conclusion could be drawn by the courts at the bail stage, and only tentative assessment of fact had to be made — Commission of alleged offence by accused required further probe — Other co-accused having already been enlarged on bail, propriety of rule of consistency would go in favour of accused — Criteria for granting and recalling bail was quite different — Once a bail was granted to an accused by the Court of competent jurisdiction, that could only be recalled, if it would appear that it had been granted in violation of the principles of law, without application of judicial mind or in arbitrary or capricious manner — No such proposition being involved in the case Court below while granting bail to accused had not violated the principles of law; and there were no compelling reasons to recall the concession of bail, extended to accused. M. Iqbal v. Abdul Qayyum 2012 SCR 110
Section 12 ZHA — for constitution of the offence under section 12, ZHA, the main ingredient is abduction or kidnapping of the victim. Habibullah v. Ghulam Rasool 2011 SCR 501 (A)
S. 12 — See Penal Code (XLV of 1860), S.377. Kamran v. State 2012 SCR 125
Section 12 — ingredients for constitution of offence — whoever kidnaps or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subjected to the unnatural lust by any person such person is guilty of the abduction and liable to death or 25 years of imprisonment — held: For the constitution of the offence u/s 12 ZHA the main ingredient is abduction or kidnapping of the victim. Aqib Hanif v. Hamza Jahangir & another 2016 SCR 1371 (B) 2011 SCR 501 ref.
—section 12—attraction of—where kidnapping and abduction for commission of unnatural lust missing—the provision does not attract in such case—conviction made under section 12 of the Act, set aside—The trial Court awarded 10 years’ imprisonment to the convict under section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985. This statutory provision relates to kidnapping or abduction of a person to commit unnatural lust, whereas, in the case in hand, after examining the statement of the victim it appears that the provisions of section 12 of the offence of Zina (Enforcement of Hudood) Act, 1985, are not attracted as the constituents of kidnapping/abduction are not available. The convict-appellant acquitted of the charge, in circumstances giving benefit of doubt. Azkar Hussain Shah vs The State & another 2018 SCR 1056 (B)
S. 18 of the Enforcement of Hudood Act read with Section 511 of the Penal Code — The words “attempt to commit offence” have not been defined in the Enforcement of Hudood Act, 1985 therefore Section 511 of the Penal Code, has to be reverted, wherein the particulars and ingredients of the offence “attempt” are almost the same as have been given in the Act. — 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 — An attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of its actual commission. Sh. Zahid Bashir v. Sarkar & other 1995 SCR 108 (A)
An accused is liable for attempt when his failure to commit an offence is not due to any act or omission of his own, but to the intervention of some factor independent of his own volition. Sh. Zahid Bashir v. Sarkar & other 1995 SCR 108 (B) PLD 1970 Lah. 230, A.I.R 1961 S.C. 1698,1982 PSC 933, A.I.R. 1962 ALL. 359 referred and relied.
The requisite elements of an “attempt” to commit a crime are: (1) an intent to commit it, (2) an overt act towards its commission, (3) failure of consummation, and (4) the apparent possibility of commission. Sh. Zahid Bashir v. Sarkar & other 1995 SCR 108 (C)
The mere fact that the accused were found together from the room of the hotel does not constitute the offence under S. 18 of the Act, particularly so when there is no evidence on record to reveal that they were doing some overt act or making preparations for the commission of offence. Appellant accused acquitted. Sh. Zahid Bashir v. Sarkar & other 1995 SCR 108 (D)
Appeal against acquittal — Supreme Court would not on principle, ordinarily interfere and shall give due weight and consideration to the findings of Court acquitting the accused and the Court shall avoid re-appraisal of evidence. Muhammad Afzal v. Mst. Riaz Begum and 2 others 2004 SCR 140 (A) 1993 SCMR 305, 1992 SCMR 96 rel.
A father cannot falsely blame a person for the offence of rape with his minor daughter as that would jeopardize her future. Sheraz Mahmood v. The State & another 2006 SCR 39 (A)
S. 10 (4) — See AJK Interim Constitution Act, 1974, S.42. 2013 SCR (SC AJ&K) 192 (C)
Ss. 10/11, 16/18 — See Criminal Procedure Code, 1898, S. 56-A. State through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and 2 others Versus Safeer Khan and another 2013 SCR (SC AJ&K) 42
Section 12 ZHA — For constitution of the offence under section 12, ZHA, the main ingredient is abduction or kidnapping of the victim. Habibullah v. Ghulam Rasool 2011 SCR 501 (A)