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Criminal Petition for Special Leave to Appeal No. 28‑R(S) of 1983, decided on 18th October, 1983.

(On appeal from the judgment of Federal Shariat Court, dated 23rd June, 1983, in Criminal Appeal No. 45/L of 1981).

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---Art. 203‑F(2‑B)‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 7 & 18‑Leave to appeal granted to consider questions regarding sentence whether (1) S. 18 of Ordinance would not control, as it does control quantum of sentence in regard to other offences, sentence awardable under S. 7 of Ordinance also, on assumption that S. 7 also provides for punishment of an offence, and (2) whether sentence of 5 years' R. 1. maximum under S. 7 would not, on account of finding of guilty of attempt only (under S. 18) be reduced to half of said period of 5 years (i.e. 2 ) as maximum when conviction under S. 18 read with S. 7 of Ordinance.

Yaseen v. The State P L D 1983 F S C 53 distinguished.

Aamar Raza A. Khan, Senior Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing : 18th October, 1983.

‑Leave to appeal has been sought, through this petition from judgment, dated 23‑6‑1983 of the Federal Shariat Court, whereby the appeal against conviction of the petitioner under section 18 read with section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 and sentence of two years' R. I. and five stripes, was dismissed ; and, instead in exercise of revisional jurisdiction, the sentence was enhanced to 5 years' R. I., 30 stripes and a fine of Rs. 10,000 in default whereof one year R. I. for the same act and offence.

The prosecution. case as disclosed by the prosecutrix is as follows :‑

"About 8 months back ata bout peshiwela I was present alone in a room of the house of my parents. My sisters and brothers had gone for reading. My mother had gone to well to serve meal to my father.

I was fasting and was lying in the room. I had closed the outer door of the courtyard of our house. The door of the room in which I was lying was open. Accused Zaka Ullah came from the roof of the kotha into my room. He could come from the roof in our house from his house. As soon as he came into my room he caught me and struck his nails tome and had torne my shirt. He caught my shirt from in‑between my breast and his nails struck my breast and injured it. He held my azarband and I raised an alarm. He had caught me when I was lying on the cot, during the struggle the cot was broken. For sufficient time the accused grappled with me. My mother Suffia Bibi turned up there followed by Baba Allah Ditta. The occurrence was witnessed by her and Baba Allah Ditta. On hearing my alarm she raised an alarm from outside. On hearing her alarm and on seeing her the accused ran away."

Both the learned Courts on consideration of the evidence, found the petitioner guilty of attempt to commit Zina‑bil‑Jabr liable to Taazir but treating him of age between 15 and 18 years, further found him liable to punishment under section 18 read with section 7 of the Ordinance and sentenced him accordingly.

Learned counsel argued that the offence disclosed by the prosecution evidence, if believed, would be under section 354, P. P. C. and not under section 18 read with section. 7 of the Ordinance. He has cited Yaseen v. The State (PLD1983FSC43) to support the contention.

Section 354, P. P. C. and sections 7 and is of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read as follows :

"354. Assault or criminal force to woman with intent to outrage her modesty.‑Whoever assaults or uses criminal force to any woman., intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with both."

"7. Punishment for zina, or zina‑bil-Jabr where convict is not an adult‑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, is 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."

"18. Punishment for attempting to commit an offence. 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."

The decision of the Federal Shariat Court cited by the learned counsel is clearly distinguishable even on consideration of the main facts of the two cases. The finding of guilty under section 18 of the Ordinance is unexcep tionable.

After hearing the learned counsel, who has not been able to satisfy us regarding any infirmity in the finding of guilty, we consider it a fit case however, to consider the following questions regarding the sentence.

Whether, section i8 of the Ordinance would not control, as it does control the quantum of sentence in regard to other offences, the sentence awardable under section 7 of the Ordinance also on the assumption that this section also provides for the punishment of an offence ; and thus,

whether the sentence of 5 years R.. I. as the maximum under section 7 would not, on account of finding of guilty of attempt only (under section 18) be. reduced to half of the said period of 5 years (i.e. 2 ) as the maximum, when the conviction is under section 18 read with section 7 of the Ordinance.

Order accordingly.

Appeal shall be made ready on the present record with liberty to the parties to file additional documents if necessary.

The appeal shall be made ready for hearing during the next session of the Shariat Appellate Bench.

M. Z. M. Leave granted.

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