1993 PLP 211 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑Learned counsel for the petitioner is in this case of double conviction under sections 354 and 450, P.P.C., has not challenged the finding of guilty in so far as the outline and main features of the case are concerned. He, however, has contended that although the petitioner has rightly been convicted and awarded sentence of one year R.I. under section 354, P.P.C., the sentence and conviction under section 450, P.P.C., is illegal. According to him the conviction snider section 450, P.P.C., is possible only if the accused commits the offence of trespass in order further to commit an offence punishable with "imprisonment for life". In this case at best the trespass was committed in order to commit offence punishable to "25 years imprisonment" under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance. Sections 450, P.P.C., and 10(3) of the Ordinance read as follows:‑‑ S.450. Whoever commits house‑trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine. S. 10(3). Whoever commits Zina‑bil Jabr liable to Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty‑five years and shall also be awarded the punishment of whipping numbering thirty stripes. It is also relevant to reproduce section 451, P.P.C., which, according to learned counsel, would be applicable in this case as well as section 452, P.P.C. which also is relevant: S.

451. Whoever commits house‑trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either descriptions for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years. S.452. Whoever commits house‑trespass, having made preparation for causing hurt to "any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 354, P.P.C., for which conviction and sentence, conceded is proper, reads as follows:‑‑ S.

354. 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. The allegations of the prosecutrix against the petitioner and the findings of the Federal Shariat Court when read together can be treated as factual basis for determining the validity of conviction and sentence under section 450, P.P.C. They read as follows:‑‑ "About two years back, it was after Asar time that I was sitting in home. I was sitting alone in my house. The outer gate of our street was opened. In the meantime accused Shakeel present in the Court entered my house. He felled me down on a cot and opened my Shalwar. The accused tried to commit rape upon me but I raised alarm whereupon Sadiq and Akram P.Ws. were attracted to the spot. Sadiq P.W. rescued me from the clutches of the accused but Shakeel accused caught hold of Sadiq and started fighting with him:

Sadiq P.W. also went outside from my house in injured condition." The relevant part of the judgment of the Federal Shariat Court reads as follows:‑‑ "However, from what she stated and what was contained in the first information report it was evident that she had not been stripped off of her Shalwar nor did the appellant put off his Shalwar. The appellant simply seems to have mishandled her. His misdeed amounted to commission of offence punishable under section 354 of the Pakistan Penal Code and not of attempt to commit Zina‑bil‑Jabr. Therefore, his conviction under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, recorded by the learned trial Court is converted into one under section 354 of the Pakistan Penal Code and in place of sentence of five years awarded by the learned trial Court in respect of his conviction of offence of attempt to commit Zina‑bil‑Jabr he is given sentence of one year's rigorous imprisonment touching the altered conviction. His conviction of commission of offence of house trespass under section 450 of the Pakistan Penal Code is quite in order and is affirmed. Nevertheless, the sentence of five years' rigorous imprisonment is reduced to two years' rigorous imprisonment. Both the sentences will run concurrently. With the aforesaid reduction in the sentence and alteration of conviction indicated above the appeal stands dismissed. As already directed by the learned trial Court the appellant will enjoy benefit of the provisions of section 382‑B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of his detention during trial of the case against the term of sentence of imprisonment." With respect some of the conclusions of the Federal Shariat Court regarding the culpability and the measure of sentence in a case like the present one would have required serious examination if there would have been a petition for leave to appeal against the acquittal under section 18 read with section 19(3) of the Ordinance and/or for enhancement. Be that as it may, it has not been held that the victim had been "stripped off her Shalwar" nevertheless the petitioner has "opened" the same after he had "felled" the victim on a cot whereafter she stated "the accused tried to commit rape" upon her. And that is why she tried to save herself by raising alarm. If the petitioner had succeeded in his design learned counsel agreed it would have resulted in the rape and the offence would have been under section 10(3) of the Ordinance. Thus, he committed trespass "in order to commit that offence". But the learned counsel vehemently argued that the offence being punishable with R.I. for 25 years as the highest punishment, could not be equated with an offence "punishable with imprisonment for life," provided in section 450, P.P.C. for which the petitioner has been convicted. Learned counsel for the petitioner himself stated that imprisonment for life in practical terms means 25 years of imprisonment but he stated that there might be other qualitative difference between the two. This may be possible in so far as the Jail Rules in both the punishments are concerned. Though none has been cited before us. Be that as it may, in so far as a practical result is concerned, a person who commits trespass in order to commit an offence which is liable to be punished with imprisonment for 25 years (whether described in numbers or in words) and defined in such a manner as to come to same number of years, section 450, P.P.C. would be straightaway attracted. If under the law imprisonment for life has been defined as 25 years imprisonment then section 10(3) having prescribed 25 years imprisonment would be covered by the phrase "offence punishable with imprisonment for life". Hence the conviction and sentence awarded under section 450, P.P.C. are not illegal. In addition to the afore recorded decision there is another aspect of the same subject. Section 451, P.P.C. makes the trespass punishable with two years' R.I. and upward imprisonment if the trespass is committed in order to committing of an offence punishable with any imprisonment. It is not the argument of the learned counsel that the trespass by the petitioner was not for the commission of any offence punishable with imprisonment. He could, therefore, be awarded sentence of 2 years' R.I. under section 451, P.P.C. Not only this, section 450, P.P.C. makes a house‑trespass punishable with imprisonment for seven years' R.I., if the trespasser was prepared to cause hurt to any person or to assault any person or to wrongfully restrain any person or to put any person in fear of hurt or of assault to harm or wrongful restraint. In this case it is impossible to imagine that when committing trespass the petitioner was not to assault the prosecutrix which actually he did and for which he also has been convicted under section 354, P.P.C. Therefore, he could be awarded 7 years' R.I. under section 452, P.P.C. Even if we would have agreed with the learned counsel that section 450, P.P.C. was not applicable on grant of leave and on hearing of the appeal the case might have been remanded to the Federal Shariat Court for re hearing of the petitioner's appeal with regard to conviction under section 450, P.P.C., and as discussed above the punishment could have been awarded under an altered conviction and the original sentence of 5 years' R.I. under the second head of charge might have well been restored. In the light of the foregoing discussion we do not find any justification for grant of leave to appeal nor otherwise it is a fit case for grant thereof. This petition, therefore, is dismissed. M.BA./S‑715/S Petition dismissed.