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Petitioner: JAVED IQBAL AND ANOTHERs VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Gul Muhammad Khan, Mufti Syed Shujaat Ali Qadri Title: JAVED IQBAL AND ANOTHERs vs THE STATE Case No.:Criminal Appeal No, 177/L of 1984 Cr. A. No, 142/I of 1981 Cr. A. No, 142/I of 1981
JUDGMENT
Reported As: PLD 1985 Federal Shariat Court 141 Result: Order accordingly Judgment JUDGMENT ' GUL MUHAMMAD KHAN, C. J.-This order shall also dispose of Criminal Revision No, 6/I of 1985, which has been filed by Ghulam Muhammad, complainant for the enhancement of sentence awarded to the appellants. The appellants were convicted by Mr. Muhammad Ashraf Khan, Additional Sessions Judge, at Gujrat on the 22nd of October. 1984, under section 18 read with section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 7 years' R. I., each with 10 stripes. In default of payment of fine they were to undergo 6 months' each further. They were also convicted under section 452, P. P. C. And sentenced to 5 years' R. I., each with a fine of Rs, 1,000 each. In default of payment of fine they were to suffer 6 months' R. I., each further. The main sentences are to run concurrently. 2. The occurrence took place on the night between the 9th and 10th of January, 1983. It was reported at 6.05 p. m" on the 12th of January,1983 through an application of Ghulam Muhammad, P. W. 7, a teacher and the husband of the victim Mst. Ghulam Fatima, P.W. 2. He stated that while he had gone out in connection with `Tabligh' the two appellants scaled over the wall of his house and knocked at the door of the room of his wife, Mst. Ghulam Fatima, P. W. 2. She enquired as to who they were. The appellants stated that they were students and had come to fetch some Ghee for her husband, Ghulam Muhammad, who had suffered an electric shock. Mst. Ghulam Fatima, P.W. 2 opened the door. The appellants entered the house and asked her to go with them so that they would satisfy their sexual lust. Mst. Ghulam Fatima refused to concede their demand on which the appellants attempted to physically lift her away. The efforts of the appellants failed when the mother of the complainant, Mst. Rehmat Bibi, who was in the other room woke up
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and reached the spot. The appellants gave beating to her also. Javed Iqbal, appellant put `Dupatta' of Mst. Ghulam Fatima around her neck and sat on her chest while the other appellant secured the mother-in-law. Meanwhile Nazir Ahmad and Ejaz Ahmad, P. Ws. Heard the noise and reached the spot. The appellants scaled back over the wall and went away. The formal F. I. R. Was recorded by Ghulzar Hussain, Head Constable, P. W. 6. 3. Doctor Fiaz Abmad Ranjha, P. W. 1 medically examined Mst. Ghulam Fatima on the 11th of January, 1983. His report is Exh. P. A. He also examined Mst. Rehmat Bibi on the same day vide his report Ex. P. B. The Police then challaned the case. 4. The prosecution examined 8 witnesses in support of its case. Gulzar Hussain, P. W. 6 testified to have correctly recorded the F. I. R. On the application made by Ghulam Muhammad, P. W. 7. P.W. 7 supported the contents of his F. 1. R. Mst. Ghulam Fatima, P.W. 2 and Mst. Rehmat Bibi, P.W. 3 narrated their version as given in the F. I. R. Muhammad Anwar, P, W. 4 had reached the place of occurrence and supported his part as given in the F. I. R. Muhammad Akbar, P. W. 5 is the witness of the recovery of shirt and `Dopatta' of MSt. Ghulam Fatima which was torn during the struggle. Muhammhd Ashraf, S. I., P. W. 8 is the Investigating Officer. 5. The appellants in their statements under section 342, Cr. P. C. Denied the occurrence and stated that they had been involved due to enmity as the ladies of the two sides had a quarrel. He also produced Mutalli as D.W. 1 but his evidence is not of much use. The trial Court rejected the defence version and convicted and sentenced the appellants, as stated above. 7. It is contended by the learned counsel for the appellants that though there was sufficient evidence on the record to prove an offence but the conviction of the appellants under section 18 of the Ordinance VII of 1979 was not justified. It is contended by him that except for the bare statement of Mst. Ghulam Fatima, P. W. 2 that the appellants had asked her to go out with them there is no other evidence, whatever. He also assailed the delay of about 3 days in lodging the F. I. R. It is to be noted that the complainant explained the delay by saying that her husband had gone out for `Tabligh' without telling his destination. She, therefore, waited for him to return and the report was lodged thereafter without delay. This explanation is quite plausible and is accepted. 7. The learned counsel also challenged the conviction to say that the facts brought on the record by the prosecution do not show that there was any intention to commit an offence of Zina or to abduct/kidnap for the purpose of illicit intercourse. He relied on Yaseen v. State (1) and Pak Muhammad v. State (2) of the same book. He also referred to Shaukat v. State (3). All three cases have been discussed in the latter part of this judgment. 8. The learned counsel also challenged the conviction under section 452, P. P. C. Pleading that the facts on record did not cover it. The reason given was that no preparation had been made for the commission of the offence. The question whether there was a preparation or not is to be seen keeping in view the requirements of the particular offence itself. If two youths trespass into a house to assault a woman they have only to be mentally prepared for it. There is thus no merit in this plea either. He further stated that as the appellant had not been charged under section 10 of the Ordinance VII of 1979 the conviction cannot be altered to fall under this provision in view of section 338, Cr. P. C. And the law laid down in Mst. Zaitoon v. Samundar Khan) (4). The last contention is generally incorrect as the appellants were charged under sections 11/18 of the Ordinance VII of 1979 and also convicted thereunder. 9. It will be seen that the complainant is a teacher in the school and is also a follower of the `Tablighi-Jamaar. He was out on 'Tabligh' on the eventful night. No enmity with the family of the complainant has been shown and nothing adverse is said about the conduct and character of Mst. Ghulam Fatima, P. W. 2 or her mother-in-law, Mst. Rehmat Bibi, P. W.
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3. The occurrence was seen by Mohammad Anwar, P W. 4 also. The learned counsel for the appellant is not in a position to point out any defect in the prosecution case. He rather candidly stated that the evidence on record did spell out an offence but that can be covered only by section 354, P. P. C. 10. The objection that the offence did not fall under section 18, read with section 11 also has no merit. It is to be seen that section 11 pertains to the abduction or kidnapping of a person for the purpose of Zina Section 10 is about the actual commission of the offence of Zina. The case of the prosecution was that the two appellants had trespassed into the house of the complainant by scaling over wall at about mid-night. They got the door of the room opened by a false pretext. However, immediately on the opening of the door they expressed their intention and attempted to forcibly take Mst. Ghulam Fatima away, probably for the reason that her mother-in-law was sleeping in the other room. They persisted in their attempts to forcibly take her away but they did not succeed. Even their conduct in the presence of Mst. Reh.Mat Bibi P. W. Shows that they had the intention of taking her away after securing Mst. Rehmat Bibi. In the circumstances, it cannot be said that the appellants had no intention to take her away. Again, the appellants had completely denied the occurrence in their statements under section 342, Cr. P. C. The case of the prosecution on the other hand, was that the appellants after trespassing in the house and getting the door of the room opened, made their intention of committing Zina with Mst. Ghulam Fatima clear. The appellants have not assailed the factual situation as emerging from the evidence but have challenged only the factual (I) PLD 1983 F SC 53 (2) PLD 1983 F SC 165 (3) P L, D 1982 F SC 179 (4) PLD 1955 13 I 9 and legal inferences therefrom Mst. Ghulam Fatima, on the other hand, was quite explicit that purpose of trespass expressed by the appellants was the commission of illicit intercourse. As a matter of fact no other purpose can be gathered from the evidence brought on the record. 10-A. The question requiring determination is whether the circumstances did show that it was a case of attempt to commit Zina or the offence would fall only under section 354, P P. C. As the evidence brought on record is not being assailed, we cannot see what could be the other purpose of the appellant in scaling over the wall of the house of the complainant at mid-night. They also got opened the door of the room under a false pretext and attempted to forcibly take Mst. Ghulam Fatima away, after telling her that they wanted to commit sexual intercourse with her. On her resistance, they . Did not stop and run away but continued their assault. They assaulted even the mother of the complainant when she intervened. The learned counsel, however, pleads that as the appellants had not taken Mst. Ghulam Fatima out of the house, the verbal threat or even the physical assault as described by the witnesses did not amount co attempt to abduction. 11. According to section 362, P. P. C. Abduction takes place if a person is compelled by force or induced by any deceitful means to go from e, any place. In the case in hand, if Mst. Ghulam Fatima had been taken out of the house, the offence would have been complete. In Allu v. State (1) when a woman was forcibly lifted from her cot on the roof and then dropped on the roof where she raised alarm, the accused were convicted for attempt. The learned counsel then argued to draw a distinction between attempt and preparation and pleaded that the act of catching and telling Mst. Ghulam Fatima that she was to be taken out for rape was at the most an act of preparation and so not punishable as an attempt. 12. Before deciding this question, it will be useful to survey the legal situation, obtaining on this point, before the enforcement of the Islamic Hudood Laws. Under the law prevailing in England and the Sub-Continent the Courts have determined. Four stages in the commission of a crime; the intention to commit, the preparation to commit, the attempt to commit, and if the third stage is successful the commission itself, as also held in Asgharali Prabandhia v. Emperor (2). Generally, but
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not necessarily, there is a motive behind every offence which sets first the thinking faculties in operation. If resolve is made to taking any action it is spelt out as an intention to do that act. 13. Intention is defined as foresight of consequences and a desire to bring them about. Intention thus is a state of mind which, it is said, is not known even to the devil. So a Court can judge the state of a man's mind only by making inferences from his conduct, as displayed before or after the commission of the offence and generally an external standard is adopted in adjudicating upon the weight of the evidence so adduced. But one who simply intimates his intention to commit an offence, commits no offence, as he might. At any time, change his mind before actually committing the same, as he held in Chandi Ram v. Emperor (3). 14. The preparation stage comes, thereafter. It consists in devising or arranging means necessary for commission of the intended act. Thus G mere obtaining thumb-impression on a blank paper or obtaining signature _(1)AIR 1925 Lah. 512 (2) AIR 1933 Cal. 893=35 Cr. L 3 97 (3) AIR 1941 Lab. 301 slip at the Polling Station fraudulently were found to be acts of mere preparation and no offences under section 171 (f ), read with section 511, P. P. C., as held in Malkhan Singh v. Emperor (1) and Shen Prashad etc. v. Emperor (2) . It was held in Walidad v. Emperor (3) that presence on roof of a house is not attempt at house breaking but only preparation. The distinction is that all the above steps prepare the way for the intended offence and are not directly linked with the intended offence. On the other hand an accused who was found to have made a hole in the outer wall of the complainant's cowshed, was surprised and arrested by prosecution witnesses after a .Chase. The Court held in Umar Ali v. The State (4) that in circumstances, he had advanced beyond stage of preparation and was attempting to commit offence under section 457, P. P. C. The Pakistan. Penal Code also makes culpable some acts of preparation as under section 399, P. P. C. Assembling for the purpose of committing dacoity under section 402, P. P. C. And attempting to commit dacoity under sections 393 and 398. That will also mean that wherever the Legislature wanted to convert even preparation into an offence it has done so expressly. 15. Having done the preparation the perpetrator is ready to attempt the commission of the intended offence. Any direct movement, thereafter, towards the commission of the intended act, is considered an attempt toles do it. Reference be made to Lakshami Prashad v. Emperor (5). The Daccal High Court in Enayatullah and another v. The Crown (6) ruled that an "attempt" is the direct movement towards the commission after the preparation has been made. The Court observed that mere wrongful confinement, unattended by any overt act, signifying an intention to commit extortion, cannot come up higher than the stage of preparation. An attempt to commit a crime must be something more than mere preparation and, acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. 16. Thus to constitute "attempt" there must be evidence of some overt act linked with the intended offence and the attempt is complete if the accused does an act which is a step towards the commission of the specific crime as held in Crown v. Naseer Ahmad (7). 'Attempt' was said tol, be some external tangible act showing progress towards the actual commission l' of offence in Paira Ram v. Experor (supra). An English Court in R. v. Miskell (8) remarked tbat an act cannot be sufficiently proximate and must be too remote if acts complained of themselves do not raise a presumption of mens rea. A criminal attempt bears criminal intent upon its face and the thing speaks for itself. The test laid down by the Madras and the Andhra Pradesh High Courts is that if an act would lead inevitably to the commission of the offence, unless something which the doer of the act neither foresaw nor intended, happens to prrvent this, it is an attempt to commit an offence. In re: Parduranga etc. (9) and E. Raman Chettier v. Emperor (10).
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17. The Corpus Suris Secundum (22 Corp. Jur. Section 137, states that intent is a quality of mind and implies a purpose only while an attempt (1) AIR 1925 All. 226 (3) 15 P R 1907 Cr. (5) AIR 1923 Pat. 307 (7) PLD 1955 Lah. 430 (9) AIR 1962 Andh. Pra. 257 (2) AIR 1926 Pat. 267 (4) 1968 P Cr. L J 1857 (6) PLD 1957 Dacca 279 (8) (1954) 1 All E R 137 (10) AIR 1927 Mad. 77 implies an effort to carry that purpose into execution. Thus in order that there may be an attempt to commit a crime there must be some overt ac iv in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual, consummation. Attempt to commit a crime in the view of the American law also consists of the same elements; as given in para. 12 above. The position into 21 American Jurisprudence 2nd page 102 improves upon our ordinary law and states as under :- "Other cases state that while the act need not be the last proximate act to the consummation of the offence, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offence after the preparations are made. It has been said that some appreciable fragment of the crime must have been committed. Some cases emphasize the immediate and direct tendency to bring about the principal crime, and the power of defendant to carry his intention into execution. ' However, it has also been held that the reason for requiring an overt act is that without it there is too much uncertainty as to what the intent actually was. From this point of view, what is needed is an act which makes the intent unequivocal. Some confirmation of the latter view may be found in holdings that whenever the design of a person to commit a crime is clearly shown, slight acts in furtherance of the design will constitute an attempt. ' Again American law does not recognise the concept of physically impossible attempt if the crime was apparently possible to the reasonable apprehension of the accused (p. 193). 20. The Supreme Court of Pakistan in Abdul - Illajid v. The State (1) similarly observed that an attempt to commit a crime consits of (i) the intent to commit the crime, (ii) performance of some act towards the commission of the crime, and (iii) failure to consummate its commission on p account of the circumstances beyond the control of the offender. The test whether there has been an attempt to commit a crime, is a factual one by reference to these ingredients. It was held in the following Dacca case that an attempt to commit crime should not be confused with the act of merely indicating intention to commit crime or with mere preparation for its commission and attempt is not complete unless act has passed beyond stage of preparation. See The State v. Basirullah (2). Thus the accepted position is that attempt is an intentional act which a person does towards Q the commission of an offence but which fails in its object through circumstances independent of the volition of that person. See also State of U. P. v. Ram Charan (3). 21. Some of the following decisions will, however, show that despite' the guidelines and various tests given above, it has not been easy for the Courts to segregate with precision or exactitude the four compartments of this division or to lay down bard and fast rules for the purpose or to drawl right lines to completely separate them. 22. Where a person brought a married woman to his place to have sexual intercourse but was interrupted at once, it was held to be a mere preparation in Piara Ram v. The Emperor. A lady
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travelling alone in a train (1) 1973 SCMR 108 (2) PLD 1964 Dacca 170 (3) AIR 1962 All. 359 woke up and found the accused sitting on her berth. She tried to reach the communication cord but he caught hold of her and began to unbutton his trousers. After another unsuccessful struggle accused apologized for molesting her. It was held, he is guilty under section 354, P. P. C. And not of attempt to commit rape. See G. V. W. Jones v. Emperor (1). It appears that in both the above cases the accused was determined to commit the offence but was prevented by something beyond his control, yet the acts were not held to be of the nature of attempt. 23. As against that a lad of 18 made, a naked girl of 5i years sit on his thighs. There was no bleeding from the private parts and her hymen was intact except redness at the entrance to vagina. He was held guilty of attempt in Mahraj Din v. Emperor (2). In yet another case, the accused put his finger in the private part of the complainant. There was no mark of semen on her Pyjama nor any marks on the male organ. Held in Sadhu Singh v. King Emperor (3) that he is guilty of attempt. It appears that in both the cases the accused had the opportunity to commit the offence but he did not avail that. Despite that he was convicted for attempt. 24. Some of the decisions quoted above pose no difficulty but other do go to show that the dividing line between preparation and attempt is very uncertain. There appears to be no difficulty in cases where th preparatory steps can be easily isolated from the steps to be taken towards the commission of the offence but it is not so in others. Another rule laid down also appears to be quite settled that even if the offender had gone beyond the stage of preparation, he was not to be punished for attempt if the act though connected with the intended offence was not proximate but remote, for the reason that it was still open to him to change his mind. This rule also appears not to have been followed as the offender in all the above cases, where he was convicted for attempt, could have changed his mind in the course of the remaining direct acts, towards the intended offence, if he was not apprehended. 25. Recently, a case involving concept of attempt was decided by the House of Lords. Lord Hailsham of Marylebone L. C, in the case of Reg v. Smith (4) quoted definition of 'attempt' from earlier English sources to say that "An attempt to commit a crime is an act done with intent to comity that crime and forming part of a series of acts which would constitute its actual commission if it have not been interrupted". This definition, however, did not help him about the point of time at which series of act begin. He then quoted another source which said "It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime." The term `actus reus' was explained to mean that "An act does not make a man guilty of a crime unless his mind be also guilty." The above view appears to be more helpful than the one given by Lord Reid at page 499 of the same report to say that it must be left to common sense to determine in each case whether the accused has gone beyond mere preparation. 26. Their Lordships were also faced with another problem in that case. The question whether a prisoner can be convicted of an offence of 'attempt' (1) AIR 1925 R. 247 (2) AIR 1927 L. 222 (3) AIR. 1923 L. 167 (4) (1975) A C 476 if it is found out that it was either legally impossible to commit the crime (stealing something which ultimately turns out to be his own) or physically impossible, for example putting hand in an empty pocket or shooting on a block of wood believing it to be a man who was his deadly enemy. The rule pronounced by the House of Lords was that no offence was committed in any of the above cases. It
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may be noted here that the view, on the above points, has been varying from time to time. Uptil 1883 the English Law did not know the concept of 'legally impossible attempt, and it appears to have been invented in R. v. Miller (1). Anyhow, Professor H. L. A. Hurt has criticised the above judgment of the House of Lords in his essay saying, "It does not, however, appear to offer comfort to those who find the acquittal of the accused in R v. Collis (2) or the dishonest clerk in Partington v. Willians (3) contrary to 'Common Sense and Common Justice.' (See Crime, Proof and Punishment, Essays in Memory of Sir Rupert Cross) published in 1981 by Butterworths, London. 27. Here, I would like to refer to some of the cases of this Court to point out the same difficulty which has been mentioned above. In Muhammad Aslam v. The State Cr. A. No, 142/1 of 1981 the appellant trespassed into the house of the complainant at late hours of night, reached the bed of the prosecutrix, untied the string of her trousers and started `Chher-Chhar' with her. A Bench of the five learned Judges held it amounted to attempt to commit Zina. The notable aspect of the case is that the learned Judges split up some of the possible steps in the commission of such an offence, such as untying the `Azarband' of the `Shalwar' of the prosecutrix, removing the `Shalwar' itself, trying to lie upon her, catching her legs and committing actual sexual intercourse. According to them such acts collectively and individually would constitue an attempt for Zina-bil-jabr as, such acts are committed immediately before the actual sexual intercourse. The distinction in their view was between the immediate and not so immediate acts and not the acts leading to the offence. As will be discussed later, this approach is much nearer to Islamic law though not exactly so. One thing however, may be noted that in this case also the appellant had yet to take a number of steps to reach the final position and could have retracted at any time. 28. In Pak Muhammad etc. v. State (4) This Court observed that if a young man and a young woman undressed themselves and the woman lies naked on the cot and the man is standing naked there, they, being consenting parties shall be deemed to have gone beyond the stage of preparation and are attempting to commit Zina and, but for…
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