Find a Lawyer

Criminal Appeal No. 28(S) of 1985, decided on 15th September, 1985

(On Appeal from the judgment of the Federal Shariat Court dated, 9‑5‑1985 passed in Criminal Appeal No. 70/L of 1985).

‑‑‑S. 10(3)‑‑Zina‑bil‑Jabr‑‑ Victim a married woman having children‑ Force used against her by accused only to subdue her and not with a view to take any revenge or cause her extraordinary injuries‑‑Case of accused not falling within category of most grave cases under S. 10(3) of Ordinance, hence need for reduction of sentence‑‑Sentence of imprisonment reduced and sentence of fine awarded in circumstances.‑ [Sentence].

‑‑Art. 203‑F‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑‑Leave to appeal granted to examine question of reduction of sentence of rigorous imprisonment and instead imposition of heavy fine or compensation.‑‑[Sentence].

Raja Mahmood Akhtar, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for Appellant.

Abdul Asim Jafri, Advocate Supreme Court for the State.

Date of hearing: 15th September, 1985.

.‑‑This appeal in a criminal case under the Offence of Zina (Enforcement of Hudood) Ordinance (No. VIII) of 1979, has arisen out of order of leave to appeal which was granted only to examine the question of reduction of the sentence of rigorous imprisonment and instead imposition of heavy fine/compensation .

The leave granting order reads as follows:

"Leave to appeal has been sought from judgment of the Federal Shariat Court, dated 9‑5‑1985; whereby petitioner's conviction and sentence of 25 years' R.I. 20 stripes and a fine of Rs.1,000 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (No. VII) of 1979, was upheld in an appeal filed by him.

The prosecution version accepted by both the Courts is that Mst. Manzoor Fatima P.W. the prosecutrix was dragged at dagger point by the petitioner into a sugarcane field and subject to Zina‑bil‑Jabr after injuring her with blunt part of the dagger. She had raised cries whereupon her brother Yousaf and Muhammad Hassan P.Ws. arrived. The petitioner fled away. The said P.Ws. saw the culprit running away from the field.

The matter was duly reported to the police. The medical evidence revealed that she was a married woman having given birth to children and thus was used to sexual intercourse and small insignificant contused wounds indicating use of violence against her. The petitioner denied occurrence.

There is no direct evidence of any enmity as alleged by the petitioner on account of which it could be thought that he might have been falsely implicated. The statement of the prosecutrix, marks of violence and deposition of two witnesses to the effect they saw a culprit running away from the field (even if their having seen the actual zina is doubtful) shows that an occurrence of Zina‑bal‑Jabr did take place. The petitioner has rightly been convicted under section 10(3) of the Ordinance.

However, the sentence of 25 years R.I. seems to be excessive. Leave to appeal is granted to examine the question of its reduction and imposition of heavy fine/ compensation."

As according to the prosecution case Mst. Manzoor Fatima a married woman, was inflicted injuries with a dagger so as to subdue her to a force Zina‑bil‑jabr by the appellant, the two learned Courts thought it appropriate to award the highest punishment to the appellant under section 10(3)‑‑the minimum being 4 years R.I.

Two questions need to be examined on question of sentence in this case: (1) whether the highest sentence of rigorous imprisonment was the only appropriate sentence in this case; and, (2) whether for awarding the highest sentence for an offence it is not relevant to consider the question of gravity of offence and its different shades in different cases.

On the first question it would be relevant to notice the injuries suffered by the prosecutrix. They are as follows:‑

"(1) A contused wound 1" x 3/4" x 1/4" on the left side of forehead.

(2) A contused wound 1" x 1/4" x 1/4" on the outer side of left forearm.

(3) A contusion mark 1" x 1" on the right index finger at its terminal part.

(4) A contusion 1/3" x 1/4" on the right thumb."

It would be noticed that the injuries were not only caused from the blunt side of the weapon but also that the offender used minimum force which caused insignificant injuries with width of I" only. Thus, the force used by the accused was only to subdue the victim and not with a view to take any revenge or cause her extraordinary injuries.

The second point would be illustrated by taking into consideration some possible aggravations in the circumstances of the present case. One, if the victim remaining the same the appellant would on account of a previous enmity had taken a revenge against the victim or against her relations and in that connection would have caused graver bodily harm with any weapon of offence, the offence would then have been much graver and it might have required the imposition of a very heavy' sentence of imprisonment‑‑may be the highest one. Another example can also be visualised. If a female child of tender age who was not used to sexual intercourse would have been violated, destroying her virginity, making her more miserable as compared to others, the culprit would have deserved much harsher punishment and may be again the highest one. But a third case was visualised during the arguments. It is not necessary to make any final comment thereon except to state the same. The example was cited of a grown up woman including a married woman or a woman who not being married is used to sexual intercourse exhibiting unguarded conduct; say, she behaves in such a manner as to create misunderstanding, without her meaning so, that she is in an inviting mood and a foolish person then commits the offence of Zina‑bil‑jabr. It would be Zina‑bil‑Jabr because, in the meanwhile, the woman realising her folly resists the immoral and unlawful approach by the culprit. In that eventuality the culprit might not deserve that much harsh treatment in matter of sentence of rigorous imprisonment as is visualised in the afore-noted two examples. This very example can be visualised in other facts also. As full arguments were not heard on such aspects of the offence we do not make any further comment. It might become necessary only when a proper scrutiny is made in this behalf in a proper case by the trial Court and an opinion is expressed by that Court. In the present case, there are no facts to support) such a supposition.

In the light of the above discussion, the present case does not, fall within the category of the grievest ones under section 10(3). Hence there is a need for reduction of sentence. We also noticed that the victim of the crime was not adequately compensated in this case. Accordingly while reducing the sentence of imprisonment to 5 years R.I. and while maintaining the sentence of 20 stripes, we award a. sentence of fine of Rs.20,000 against the appellant who shall suffer further four years R.I. in default of payment thereof. When the amount of fine is recovered the whole of it shall be paid as compensation to Mst. Manzoor Fatima.

With the above modification of sentence of rigorous imprisonment and fine, while maintaining the sentence of 20 stripes, the appeal is partly allowed.

M . Y . H . Appeal partly allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.