2002 PLP 885 (YLR)

6. So far as the case of rape is concerned, it would be appropriate and advantageous to reproduce the definition of rape as given in section 375 of the Pakistan Penal Code, which reads as under:‑ "Rape. A man is said to commit "rape" who except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:‑ First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death or of hurt. Fourthly. With her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under fourteen years of age. Explanation:‑‑ Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." From the plain reading of the above provisions of section 375, P.P.C. it is manifestly clear that rape is said to have been committed with a woman if falling under any of the above five descriptions.

7. The word "Zina' has been defined in section 4 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) as under:‑ "

4. Zina: A man and a woman are said to commit ` Zina' if they wilfully have sexual intercourse without being validly married ‑to each other. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina."

8. In both the above referred laws, the sexual intercourse by a man with woman is the pre‑condition and if the ingredients of rape and Zina are not made out in the case, it would not be inferred that the person has committed any rape of Zina with the woman. In the instant case the petitioner has not been charged and convicted for committing Zina or rape with any woman and has been convicted under section 11 of Ordinance VII of 1979 which envisages that whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to .be likely that she will be compelled, to marry any per against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine, and whoever by means of criminal' intimidation as defined in the Pakistan Penal Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." There is no provision that the accused would be punishable under the section if he commits Zina or rape with the abducted lady. There is no allegation against the petitioner that he had forced or seduced any woman to illicit intercourse. Had he committed the offence of Zina, he would have been charged and punished either under section 10(2) or section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. There is no evidence on record that he has committed rape with the consent of the woman or that he subjected her to Zina‑bil‑Jabr.

9. For the foregoing reasons, I haves no hesitation in observing that petitioner has not been punished for committing Zina or rape, therefore, para. 1 of the letter is attracted to the, present case and he is entitled to remission of one year in his sentence and for other remission granted from time to time if his case is not covered within the offence of rape or Zina. In view of the above discussion, this writ petition is accepted and the respondent is directed to award remission to the petitioner in the light of the above observations. N.H.Q./A‑544/L Petition accepted.