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(a) Constitution of Pakistan (1973)

-- Art. 203-F - Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 18 read with Ss. 7 & 10-Leave to appeal granted to examine question whether a minor in an attempt to commit Zina-bil-Jabr could be sentenced to more than 2 years.[Sentence].

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)

-- S. 18 read with Ss.-7 & 10-Attempt to commit Zina-bil-Jabr by a non-adult person-Accused being non-adult, sentence under S. 18 read with S. 7, held, to be reduced from 5 years' R. I. to 2J years' R. I.-[Sentence-Age].

A combined study of sections 7, 10 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 reveals that the offence of Zina committed by a non-adult person has been distinguished from the Zina committed by an adult person. That is why the offences mentioned in section 7 and section 10 are treated as separate offences with separate punishments. It logically concludes that an attempt to commit the offence under section 7 does not amount to an attempt to commit the offence mentioned in section 10, particularly having regard to the words "subject to the provisions of section 7" in the beginning of section 10. This will mean that an attempt of Zina-bil-Jabr liable to Tazir by an adult person can be punished to a maximum punishment of 12 years and 6 months i.e. one-half of the maximum punishment under section 10(3), but where an attempt of Zina-bil-Jabr is committed by a non-adult person the maximum punishment would be 2 years and 6 months i.e. one-half of the maximum punishment prescribed in section 7.

This case admittedly is not of an actual Zina-oil-Jabr but of only an attempt to commit the same. So, the punishment under section 18 read with section 7 must have been reduced from 5 years' R. 1. to 2J years' R. 1. i.e. 2 years and 6 months' R. 1.

Aamar Raza A. Khan, Senior Advocate Supreme Court and Hamid Aslam Qureshi, Advocate-on-Record for Appellant.

Sh. Ijaz Ali, Advocate-on-Record for the State.

Date of hearing : 14th May, 1984.

MUHAMMAD TAQI USMANI, J.-The appellant in this case is a minor. He was convicted by the Additional Sessions Judge, Gujranwala under section 18 read with section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to 2 years' R. I. and 5 stripes.

On appeal, the Federal Shariat Court not only maintained the conviction, but in exercise of its original jurisdiction, enhanced the sentence from two years' R. 1. to 5 years' R. I. and from 5 stripes to 30 stripes, and awarded him an additional punishment of fine of Rs. 10,000 or further R. I. for one year in default. Out of the fine, if recovered, a sum of Rs. 8,000 was ordered to be paid to the victim, Mst. Tahim Bibi.

Leave to appeal, in this cage, was granted by this Court on 18-10-1983 only to examine the question whether a minor in an attempt to commit Zina-bil-jabr can be sentenced to more than 2J years. We, therefore, need not go into the facts of the case. The only question is one of the quantum of sentence. The relevant provisions of law in this regard are found in section 10, section 7 and section 18 of the Ordinance. These are reproduced below :

"Section 7.-A person guilty of Zina' or Zina-bil-Jabr' shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes;

Provided that, in the case of Zina-bil-Jabr', if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment.

Section 10.-(1) Subject to the provisions of section 7, whoever commits Zina or Zina-bil-Jabr which is not liable to Hadd, or for which proof in neither of the forms mentioned in section 8 is not available and the punishment of Qazf' liable to Hadd has not been awarded to the complainant, or for which Hadd may not be enforced under this Ordinance, shall be liable to Tazir.

(2) Whoever commits Zina liable to Tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine.

(3) Whoever commits Zina-bil-Jabr liable to Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and, if the punishment be one of imprisonment, shall also be awarded the punishment of whipping numbering thirty stripes.

Section 18.-Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed and in such attempt does any 'act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as, is provided for the offence, or with any two of, or all, the punishments."

A combined study of these sections reveals that the offence of Zina committed by a non-adult person has been distinguished from the Zina committed by an adult person. That is why the offences mentioned in section 7 and section 10 are treated as separate offences with separate punishments. It logically concludes that an attempt to commit the offence under section 7 does not amount to an attempt to commit the offence mentioned in section 10, particularly having regard to the words "subject to the provisions of section 7" in the beginning of section 10. .This will mean that an attempt of Zina-bil-Jabr liable to Tazir by an adult person can be punished to a maximum punishment of 12 years and 6 months i.e. one-half of the maximum punishment under section 10(3), but where an attempt of Zinabil-Jabr is committed by a non-adult person the maximum punishment would be 2 years and 6 months i.e. one-half of the maximum punishment prescribed in section 7.

In the instant case, both the learned Courts below have convicted the appellant under section 18 read with section 7, but the learned Federal[C Shariat Court has enhanced the sentence to 5 years' R. 1. which is the maximum punishment prescribed in section 7. This case admittedly is not of an actual Zina-bil-Jabr but of only an attempt to commit the same. So, the punishment under section 18 read with section 7 must have been reduced from 5 years' R. 1. to 2J years' R. I. i.e. 2 years and 6 months' R. I.

We, therefore, allow this appeal partly, and reduce the sentence of imprisonment from 5 years to 2 years and 6 months' R. 1. The punishment of whipping and fine, however, are maintained. The punishment of whipping shall be executed at a public place strictly in accordance with the Execution of Punishment of Whipping Ordinance, 1979.

M. z. M. Appeal partly allowed.

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