PLJ 1991 SC 480 [Appellate Jurisdiction]
Present: dr. nasim hasan shah, chairman and abdul qadeer chaudhry and maulana muhammad taqi usmani, JJ
SULTAN BIBI-Appellant
versus IBRAHIM and two others-Respondents
Criminal Appeal No.6(S) of 1989, decided on 9.4.1991
[Against judgment dated 5.11.1986 of Federal Shariat Court, in Crl. Appeal No.218/I of 1986.]
(i) Pakistan Penal Code, 1860 (XLV of 1860)-
— S.354 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 18~Modesty of woman-Outraging of— Conviction for-Distrinction between a case of outraging modesty or attempted rape—Act of violence or mischief to indignation or annoyance of a woman would constitute offence mentioned in Section 354 PPC-Actual intention of committing rape is not contemplated by this section-In attempt, accused commits some overt act towards achieving his object but cannot succeed due to interruption by some external facts and circumstances not connected with object of accused.
[Pp.483&484]A&B
(ii) Pakistan Penal Code, 1860 (XLV of I860)-
— S354 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 18— Modesty of woman-Outraging of—Conviction for—Whether it was , a case of outraging of modesty or of an attempt to commit rape-Question of- Facts established on record are that girl was apprehended by two respondents who caught hold of her y arms, that she was dragged to sand dunes at a distance of 40 Karams, and that her Shatwar was removed by them-Her shirt was also torn in a struggle to save her from clutches of accused—Held: These series of acts would cq«»stfrn*e an offence under Section 18 of Hudood Ordinance-Held tether: Case sorely falls under Section 18 of Ordinance and order of Federal Shariat Court is '-not sustainable in law-Conviction altered
at already undergone [Pp.484&485]C&D
1988 P.Gr.LJ 2364, 1984 SCMR 893, 1985 SCMR 997, PLD 1982 FSC 179 and 1973 SCMR 108 discussed.
Sh. Zamir Hussain, Advocate, Supreme Court, and Ch. AkhtarAli, AOR for
Appellant.
Mr. M.Kowkab Iqbal, Advocate, Supreme Court/AOR for respondents 1 and
Raja A.Ghafoor, Advocate, Supreme Court for State. Date of hearing: 5.3.1991.
judgment
Abdul Qadeer Chaudhry, J.- This appeal by
leave of the Court is directed against the judgment of the
2.
The
facts, in brief, are that Mst. Sultan Bibi PW.2 reported that 5/6 days prior
to the occurrence, she was coming from Bhalla Village to the outside fields for grazing cattle. The respondents Muhammad
Ibrahim and Mansab came out from the
bushes. Ibrahim caught hold of her by arms. She got released herself and made
scream on which both the accused dragged the complainant behind the sand dunes
and forcibly untied her Shalwar. On alarm being raised by her, Muhammad Bilal
and Khan Muhammad, residents of Bhalla who were working in the nearby fields came there. On seeing them, the accused ran
away from the spot. During the
struggle, her shirt had torn. The trial Court convicted the respondents under section
11 of the ordinance and sentenced them to imprisonment for life and fine of Rs. 5,000/- each or in default to undergo R.I.
for 2 years and 30 stripes each. Each
of them was also convicted under section 10(3)/18 of the Ordinance to suffer R.I. for twelve and a half years. The
sentences awarded to Ibrahim were ordered
to run concurrently. The benefit of Section 382-B Cr.P.C. was also given to the respondents. The respondents challenged
their conviction before the Federal
Shariat Court which set aside the conviction and sentence of both the accused under Section 11 of the Ordinance. The
conviction under Section 10(3)/18 of the said Ordinance was converted
into one under Section 354 P.P.C. and the
sentence was reduced to 18 months' R.I. and fine of Rs. 2000/- or in default
of payment of fine, to further undergo R.I. for three months each. In case of recovery of fine, Rs. 2000/- were ordered to be
paid as compensation to the complainant.
The trial Court as well as the Federal Shariat Court have accepted the prosecution case against the respondents. Mst,
Sultan Bibi has corroborated the
statement of fact recorded in the
First Information Report. PW.5 Muhammad Bilal had witnessed the incident and supported the statement of the
prosecutrix.
3.
Leave to appeal had been granted to consider whether the
case falls under Section 18 of the Ordinance or the conviction recorded under S.
354 PPC is legal. Leave s not sought
against the acquittal of the respondents under Section 11 of the Ordinance.
4. Mst. Sultan Bibi had
appeared as P.W2 and she had deposed that "Ibrahim accused caught me from arms but I relieved myself.
Then both of them dragged me to the sand
dunes at a distance of about forty karams when I raised alarm. Then Mansab accused caught me from arms.
Ibrahim accused removed y shalwar
as well as his own. I then again raised alarm by which Muhammad Bilal and Khan Muhammad were attracted to the spot.
Seeing them coming, the accused
released me and went away towards south. My shirt was torn in the scuffle".
PW.5 Bilal deposed that "I alongwith Khan Muhammad was coming to my village Bhala. When we eached near
5.
The age of the girl at the time of recording the First
Information Report was 10/11 years.
6. The reason which found
favour with the
7. Section 354 P.P.C. may be re-produced hereunder-"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 fine, or with both".
8. The
expression "outrage modesty" as contained in Section 354 PPC has not
been defined anywhere. The act of violence or mischief to the indignation or annoyance f
a woman would constitute the offence mentioned in Section 354 PPC. The actual intention of committing rape is
not contemplated by Section 354 PPC.
There is a thin line between an "assault" under Section 354 and an
"attempt" as mentioned in Section 18 of the Ordinance. It is
always a question of fact to be determined
on the material on ecord keeping in view
the attending circumstances of a
particular case. In Corpus Juris Sccundum, Vol.22, the definition and distinction of "attempt" have been escribed in Section 73 and 75 in the following
words:-"S.73.- An
attempt to commit a crime may be defined as 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, so that, if
not prevented, it would have resulted in the full consummation of the intended crime.""S.75.- An attempt to commit a crime
consists of an intent to commit it, performance
of some act toward its commission, and failure to consummate its commission."
9.
In "attempt" the accused commits some overt act
towards achieving his object but cannot succeed due to interruption by some
external facts 'and cricumstances which are not connected with the object of
the accused. He fails to attain the object through some independent circumstance.
An accused who has made certain movements in execution of completing his design but failed
to consummate
the substantive offence due to the inervention of certain facts the attempt is complete.
If the attempt had succeeded the natural result would be that the offence charged
would have been committed.
10. Learned counsel for
the respondents has referred to Mst.Saiqa v. The State (1988 P.
Cr. LJ. 2364) wherein certain observation has been made while granting bail to the
accused. Such observation is confined to that case and it cannot be extended
to any other case.
11. In Muhammad Khan v.
Tha State (1984 SCMR 893), the intention of the accused was
frustrated by arrival of prosecution witnesses on spot. The conviction under
Section 18 was maintained.
12. In Mureed Ahmad v.
The State (1985 SCMR 997), it was observed that "a part of evey attempt
at rape may include preparation and/or molestation, but it
does not mean that it was not
attempt.
13. In Shaukat v. The State (PLD
1982 FSC 179), according to the majority judgment,
"attempt" means an intentional act with a view to attain a certain
end
but fails to consummate its
commission because of the circumstances beyond the control of the offender. The words "any
act" used in Section 511, PP.C. and Section 18 of the offence of Zina, Hadood Ordinance, exclude the notion
that the final act short of actual
commission is alone punishable but this expression will include any one of those cts whether first or the last forming part of
series of act constituting attempt, if done with the necessary intention
towards the commission of that
offence".
14. In Abdul Majid v.
The State (1973 SCMR 108), "ingredients necessary in an attempt to commit
crime have been described as follows: (i) The intent to commit the crime, (if)
performance of some act towards the commission of the crime, and (Hi) Failure
to consummate its commission on account of the circumstances eyond the control of the offender."
15. n assault with the intention of committing rape is not contemplated by S. 354 PPC. An accused who has devised certain acts towards completing his design but cannot succeed due to the arrival of the prosecution witness, will be guilty under S. 18 of the Ordinance. In the present case, the facts established on record are that the girl was apprehended by the two respondents who caught hold of her by arms. She got herself released but the accused did not stop there. They dragged her to the sand dunes at a distance of about forty karams. One of the accused caught hold of the prosecutrix and the second removed her shalwar. PW. Bilal has stated that she was lying on the ground when he came to the spot afterher alarm. Her shalwar had been removed by the respondents. The two Courts have accepted the prosecution version. But for the timely arrival of the witnesses, the accused persons would have succeeded in their object. The modesty of the girl had been outraged on the first act of the respondents when one of them caught hold of her by arms. The subsequent acts of the accused were in furtherance of their common object to commit rape. These acts of the accused could not minimise the gravity of the offence. The additional circumstance is that in the struggle to save her from the dutches of the respondents, her shirt was also torn. These series of acts would constitute an offence under Section 18 of the Ordinance. They had made attempts to commit rape on the person ofMst. Sultan Bibi. By no standard it can be said that all these acts only amounted to outrage the modesty of the girl. The case squarely falls under Section 18 of the Ordinance therefore the order of the Federal Shariat Court is not sustainable in law. We allow this appeal and convict the respondents 1 and 2 under Section 18 of the Ordinance. As regards, die sentence, the punishment provided under Section 10(3) shall not be less than four years nor more than 25 years and if the punishment is one of imprisonment, the accused shall also be liable to punishment of whipping numbering 30 stripes. The punishment under Section 18 extends to one hah7 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 three punishments are provided in Section 18 and such punishments may be awarded to an accused person under this section. No fine is provided in Section 10(3). We have now to consider as to what would be the appropriate sentence in the present case. The sentence of 18 months has been awarded under Section 354 PPC. We might have considered the enhancement of the sentence under S. 18 but apart from the fact that the fine has also been imposed against the respondents, they have already undergone the sentence imposed upon them. The date of the incident is 13-6-1984 and the Federal Shariat Court disposed of the appeal on 5-11-1986 and as per judgment of the Federal Shariat Court, the respondents had undergone their entire sentence and they must have been released in the year 1988. After the lapse of about 2 years, we do not consider it proper to enhance the sentence. Therefore, while convicting the respondents under Section 18, we maintain the sentence already imposed upon them.
16. The appeal is
accordingly disposed of.
(MBC) (Approved for reporting) Conviction
altered.