ABDUL RAHMAN Versus The STATE

Jail Petition for leave to Appeal No. 8-R(S) of 1985, decided on 23rd October, 1985.

Authored by Nasim Hasan Shah. Result: Leave refused.

Summary

This petition for leave to appeal was filed by the petitioner, Abdul Rahim, challenging his conviction for abduction and Zina. The petitioner and two co-accused were initially charged with abduction for the purpose of Zina and committing Zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The trial court convicted the petitioner under sections 16 and 10(2) of the Ordinance, 1979, and section 466 of the Pakistan Penal Code 1860, while acquitting the co-accused. On appeal, the Federal Shariat Court maintained the convictions under the Ordinance but acquitted the petitioner of the charge under section 466 of the Pakistan Penal Code 1860. The petitioner sought leave to appeal against this decision. The Supreme Court reviewed the record and found the judgment of the Federal Shariat Court to be correct and legally sound. Consequently, the Court dismissed the petition for leave to appeal, affirming the convictions and sentences imposed by the lower appellate court, thereby upholding the findings regarding the petitioner's culpability for the offences under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

Questions settled in this judgment

Whether a conviction for abduction and Zina under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 can be sustained when co-accused are acquitted?
Can a petition for leave to appeal be dismissed on merits despite a significant delay in filing?
Does the acquittal of a charge under the Pakistan Penal Code 1860 affect the concurrent running of sentences imposed under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?

Laws & provisions referred

Section 203-F(2-B), Constitution of Pakistan 1973
Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
Section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance 1979
Section 466, Pakistan Penal Code 1860
Section 382-B, Code of Criminal Procedure 1898

Zinaabductionleave to appealHudood lawsconcurrent sentencescriminal conviction

OPINION

NASIM HASAN SHAH, J.--Notwithstanding the delay of 384 days for which an application to condone, has also been filed, this petition for leave to appeal (through Jail) under section 203-F(2- B) of the Constitution, is disposed of on the merits, in view of the serious charge against the petitioner.

The petitioner, Abdul Rahim alongwith two other co-accused, Fateh Muhammad (his maternal- uncle) and Bhag Bhari (his maternal aunt), were jointly tried on the following two charges:-

(1)that the above two male accused, Abdul Rahim (petitioner) and Fateh Muhammad (co- accused) on 23-6-1982 at Khuftanvela in Village Mirjan, Tehsil Talagang, District Attock, abducted their co-villager, Mst. Shamim Akhtar, with the help of co-accused, Mst. Bhag Bhari, from the house of her parents in order to commit Zina with her and thereby committed an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; and

(2)that the above Abdul Rahim (petitioner) on the above date, time and place, after abducting Mst. Shamim Akhtar in the above manner, went on committing Zina with her from 23-6-1982 to 25- 7-1982 and thereby committed an offence under section 10(3) of the above Ordinance of 1979. The learned trial Judge by his judgment, delivered on 21-6-1983, found the accused, Abdul Rahim (petitioner) guilty and convicted and sentenced him as follows:-

(i)3 years' R.I. Plus whipping numbering five stripes and a fine of Rs.1,000 or in default further 6 months' R.I., under section 16 of the Ordinance, 1979;

(ii)5 years' R.I. Plus whipping numbering thirty stripes and a fine of Rs.2,000 on in result further one year's R.I., under section 10(2) of the Ordinance, 1979; and

(iii)2 years' R.I. And a fine of Rs.500 or in default further 3 months' R.I. Under section 466, P.P.C. The substantive sentences were ordered to run concurrently and the benefit of section 382-B of Cr. P.C., was also given to the petitioner. The learned trial Judge, however, found the other two co- accused, Fateh Muhammad and Mst. Bhag Bhari, to be innocent and acquitted them of the charges framed against them while giving them the benefit of doubt.

On appeal filed by the convict-petitioner, Abdul Rahim, a learned Single Judge (Mr. Justice B.G.N. Kazi) of the Federal Shariat Court (at Islamabad), vide judgment, dated 14-2-1984, maintained his convictions and sentences under sections 16 and 10(2) of the Ordinance, 1979, but acquitted him of the charge under section 466, P.P.C directed that the said acquittal of the petitioner shall not affect further order of the trial Court that the rigorous imprisonments under sections 16 and 10(2) of the Ordinance, 1979, shall run concurrently and that the benefit of section 382-B of Cr.P.C., shall be given to him.

The petitioner still not feeling satisfied with this judgment has, now moved this Court by this petition for leave to appeal through the Jail authorities.

I have gone through the record and am satisfied that the judgment and order of the learned Judge of the Federal Shariat Court is quite opposite and does not require any interference. I would dismiss this petition.

SHAFIUR RAHMAN, J.--I agree.

ORDER OF THE COURT

The petition is dismissed.