P L D 1991 Federal Shariat Court 268 (PLP)

This appeal arises out of the judgment dated 13th January, 1991 passed by the Additional Sessions Judge, Rawalpindi, whereby, the appellant was convicted under section 18 read with section 10(3) of th: Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to three years' R.I., whipping numbering five stripes and a fine of Rs.2,000 m default to undergo further R.I. for two months, for the alleged attempt to commit Zina with Mst. Zakia. The occurrence, is alleged to have taken place on 8-7-1989 at about 12-00 noon at Police Station Kallar Syeddan, District Rawalpindi, which was reported to the police and F.I.R. was lodged the second day at about 2-00 p.m,

2. The prosecution examined in all five witnesses P.W.1. Dr. Nadeem Nasim, Medical Officer, Civil Hospital Kahuta, medically examined the accused/appellant Arshad Mahmood and found him fit to perform the sexual intercourse vide report (Ex.P.A/1). P.W.2. Muhammad - Sabir Hussain, a cultivator who, on hearing the hue and cry of Mst. Zakia and Mst. Saeeda Parveen from the side of Kass, went towards Kass by running and saw that "Arshad Mahmood, accused present in the Court was holding Mst. Zakia Bibi by her hand and was trying to fell her down on the ground, with the intention to commit Zina with Mst. Zakia Bibi. And the Kameez of Mst. Zakia Bibi was also torn from the side of right arm. Arshad Mahmood accused on seeing me ran away and I chased him till some distance He was also holding a knife in his hand. I hurled abuses upon him". In cross, the said witness admitted that he had no previous complaint about the accused and that the mother of the accused had instituted a suit for the recovery of Rs.22,000 against him which was still pending. The witness also admitted that "it is correct that the police initiated proceedings regarding 107/151. Cr.P.C. against us". P.W.3 Mst. Zakia Bihi, wife of Sajid Mahmood, the victim deposed that on the day of occurrence:-- "I and my daughter Saeeda Parvecn, again said my cousin, Saeeda .;,, Parveen, had gone in a Kass for watering the buffaloes and were coming f,. back towards my home. Kass is at a distance of 100 yards from my house. There came Arshad Mahmood, the accused present in the Court. He put both his hands on my mouth and tried to kiss me. I pushed him back. Then he caught hold me by my right arm and tried to fell me down for zira. My shirt P.2 was torn from the side of my right arm. I and Saeeda raised alarm whereupon my maternal-uncle Sabir was attracted to the spot. On seeing him, the accused ran away. The accused was holding knife in his hand." In cross she stated that she saw the accused on that day for the first time, when allegedly the accused caught hold of hei arm, she sustained no scratches. She denied strained relations between the families. P.W.4 Shah Shahwar, S.I.P., Police Station Kotli Station, stated that on receipt of the complaint Ex.P.C. he drafted the formal F..I.R. (Ex.P. C/1) which is in his hand and bears his signatures. P.W. 5 Allah Yar, A.S.I. Police Station Kallar Sycddan had investigated the case, recorded the statements of the P.Ws and took into possession the torn shirt of the complainant through recovery memo (Ex.P.D). He arrested the accused on 10-7-1989, who was produced by his maternal grandfather, and recovered the knife from his possession vide recovery memo (EX.P.B). He prepared the challan and sent up the accused for trial.

3. The accused/appellant was examined under section 342, Cr.P.C. who inter alia denied the knife belonging to him and in answer to question No.6, replied as under-_ "I am innocent and I have been falsely involved in this case. My father died about nine years back who used to supply water to the inhabitants of the village including the house of the complainant. My mother, on the death of my father had collected money which was given to her as help from the inhabitants. Sabir, the maternal uncle of the complainant took a loan of Rs.22,000 from my mother. I went to the house of said Sabir alongwlth my mother to demand the return of loan on which an altercation took place there. Mst. Zakia Bibi, the complainant who happened to be present there entered into a scuffle with my mother and I, to help my mother, rescued her from Mst. Zakia and in that process her shirt was torn. Thereafter, I alongwith my mother came back to our house when Sabir issued threats to us that he will teach a lesson for this. Whereafter the present case was concocted and fabricated against me falsely to revenge that insult and also in order to usurp our money which he had taken as a loan from my mother. Civil litigation is still pending in between my mother on one side and the abovesaid Sabir on the other side. Whereas criminal proceedings under section 151/107, Cr.P.C. were initiated against the complainant as well as against me regarding that scuffle. I was arrested from my house and I have not committed any offence or excess with the complainant. P.Ws have deposed falsely being the close relatives of the complainant as well as to take the revenge of the abovestated quarrel. I deem the complainant just like my sister:' In answer to question that "will you appear as witness on oath to disprove the charge against you as required under section 340(2), Cr:P.C." he answered "I do not deem it necessary because I have already stated above the true and the real facts".

4. It is noticed that the prosecution gave up the P.W. Mst. Saeeda Parveen who was stated to be present at the time of occurrence alongwith Mst. Zakia, the victim, and also did not produce Sajid, the husband of Mst. Zakia, who was allegedly a recovery witness of knife. There is also no signature or thumb impression of the recovery by any witness on (-'"'o~;!~ t 9;~">~ ) except that it bears the thumb impressions of Mst. Zakia, the victim. Although P.W.2 Muhammad Sabir stated that the Oameez was produced and taken possession of before the. Police in his presence, but he had not been shown as recovery witness of the Qamecz (Ex.P.D).

5. Mr. Iftikhar Hussain Chaudhary, learned counsel for the appellant, submitted that the accused was very well known to the family of the victim inasmuch as he used to carry water to the house of the victim as has also been admitted by P.W.2 in his statement who is a close relation of the victim. It was also submitted by the learned counsel that there is no mention of any knife in the complaint (Ex.P.B), but the same has been added in the F.I.R. The said knife was also not produced in the Court, so this addition made by the police is to be ignored.

6. Learned counsel for the appellant further submitted that if at all the facts of the case are taken on their face value there is no attempt to commit Zina. The boy who is about 13 years of age might have tried -to kiss her. It was, therefore, submitted by the learned counsel that the offence, if proved at all, falls under section 354, P.P.C. 7. . -..t; t$ :_

7. The question which arises for consideration is whether it is a case of attempt at forcible criminal assault punishable under section 18 of the Zina (Enforcement of Hudood) Ordinance or under section 354, P.P.C.

8. The question necessarily implies defining actus reus of attempt to commit rape; and as a necessary corollary defining mens rea for attempts. Actus reus is simply a statement of thepoint at which the criminal law will intervene to penalise a particular type of human conduct assuming a certain state of mind. While it is easy to prescribe and define a substantive offence because it relates to a completed conduct, but it is not so in case of attempt; for attempts to commit crimes involve an infinite range of human activity which is difficult to define with certainty in advance. The problem is age old and universal. This rule gave rise to drawing of distinction between acts of preparation and acts of attempt; and the doctrine of proximity which has had considerable influence over the years in determining whether a case is that of attempt or not. tai

9. A test, for determining actus reus of attempts, was first hinted at in Cheeseman (1862) Le & CA 423 and espoused by Sir James Fitzjames Stephen, as that: "An act forming part of a series of acts which would constitute (the) actual commission of a crime if it were not interrupted. (A Digest of Criminal Law: London 9th ed. Art.29)."

10. The theory of "proximity" which is relevant to the attempt was developed by American ,fudge Holmes, into what is called dangerous proximity doctrine. According to him "As the aim of law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it". (Commonwealth v. Kennedy (1897) 170 Mass. 18). "The nearness of the danger, the greatness of the harm and the degree of apprehension," according to the tearned Judge could be the determinative factor. Much, of course. depends on the degree of proximity of the acts in question.

11. Another test, the equivocality test proposed by Salmond (Jurisprudence. 6th Edn. 346) is : "An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence, aliunde, as to the purpose with which it is done."

12. Over the years, a controversy has raged in the Western countries over the definition of actus reus of attempts: Some criminologists advocate that acts of preparation should also be made offences. According to them, an offence of t preparation is as definite as any thing in law. (Glanville, Williams-- Criminal Law). While others consider that the law of attempts impinges upon human freedom. Argument is that the punishment of an accused for an attempt in the interest of crime prevention, deterrence and reformation may constitute an undue interference with his individual freedoms. The Courts generally have applied strict definitions of the actus reus required for attempts. A brief survey of the law would reveal this tendency.

13. In Ahmad Asalt Mirkahan (Ratan Lai

Law of Crimes) Mirza and Broomfield, JJ. of Bombay High Court, said: "The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her:"

14. In State of Madhya Pradesh v. Babu Lai (AIR 1960 MP 155) the Court said: "In view of the fact that the accused made the girl naked only and did not i expose or attempted to expose his private parts nor there was any action on the part of the accused to indicate that he was determined to have sexual intercourse with her at all events; this would be a case under section 354, P.P.C:"

15. In Nuna v. Emperor (1912) 13 PLR 350, the accused made the woman naked, then sat beside her but did nothing else, the Lahore High Court held it to be an offence a/s 354, P.P.C.

16. In Khadam v. K-E (1920) PLR 42, the accused made a woman naked then lay over her, the Lahore High Court held it to be a case of attempted rape. In Kishan Singh AIR 1927 Lah.580 similar view was taken.

17. AIR 1925 Rangoon 247 it was observed: Whether a particular act done with the requisite intention towards the commission of an offence is sufficiently proximate to its commission to constitute an attempt or is so remote as to constitute only a preparation for its commission, depends upon the facts and t circumstances of each case.

18. In 1972 Raj. L.W. 620, the attempt was defined as: An attempt to commit rape is an act done with an intent to commit a crime in part execution of criminal design amounting to more than mere preparation, but falling short of actual consummation which if not prevented would have resulted in the full' consummation of the act attempted.

19. After the promulgation of Ordinance VII of 1979, law of attempt assumed greater importance and the Federal Shariat Court gave important judgments on the subject. Some of them may be referred to as under:-- "(i) Shaukat v. The State PLD 1982 FSC 177 was the first exhaustive judgment, but there was divergence of opinion amongst the Hon. Judges. Minority view expressed by S. Aftab Hussain, C.J. was that the attendant circumstances, requisite for actual intercourse should be fully present and then there should be an actual attempt at penetration; and that unless this stage had reached, there could be no conviction for attempted rape. (ii) Muhammad Aslam v. State PLD 1985 FSC 282 was decided in 1981 by a Full Bench 'of this Court but reported much later. This judgment, virtually followed AIR 1927 Lah. 580; judgment cited above and held that the facts of the case constituted it lcmpt to commit Zina-bil-Jabr. t , ^. (iii) Javed lqbal v, The State PLD 1985 FSC 141 was a case of attempted abduction. The Full Bench reviewed case-law on the law of attempt. . Earlier judgments of the Court including Muhammad Aslam's case were i . . :. disapproved saying that they were not based on Islamic Principles. As far as principles of Shariat are concerned, the judgment gave Iwo views; one, that all acts leading to the commission of substantive offence are also punishable by way of Ta'zir and the second view; that only conduct constituting actual commission of offence was liable to punishment. Islamic law of attempts in definite terms was, however, not laid. A brief survey of case-law of this Court cited above would reveal that in Shaukat's case, "dangerous proximity" test was applied by the Hon'ble C.J. In Aslam's case, "last act" test was applied. 1n Javed lqbal's case, the accused's conduct was considered to be "substantial step" towards the commission of offence. However, in none of the cases, actus reus for an attempt to have unlawful sexual intercourse (forcible or otherwise) was defined with precision.

20. In Black's Law Dictionary, fifth edition, `attempt" has been defined as under:-- "Attempt.--1n statutes and in cases other than criminal prosecutions an `attempt' ordinarily means an intent combined with an act falling short of the thing intended. It may be described as an endeavour to do an act, carried beyond mere preparation, but short of execution. i An effort or endeavour to accomplish a crime, amounting to more than j mere preparation or planning for it, which, if not prevented would haves resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design. The requisit;' elements of an "attempt" to commit a crime are: (1) alt intent to commit I it, (2) an overt act toward its commission,. (3) failure of consummation, jog and- (4) the apparent possibility of commission, state v. Stewart, Mo. App., 537 S.W. 2nd 579,

581. I A person is guilty of an attempt to commit a crime if, acting with the ou kind of culpability otherwise required for commission of the crime, he (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does not or omits to do anything with the purpove of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course.of. conduct planned to culminate in his commission of the crime. Model Penal Code, 5.01:' The word `preparation' in the aforesaid Dictionary is defined as under:- "Preparation: -With respect to criminal offence, consists in devising or arranging means or, measures necessary for its commission, while attempt is direct movement toward commission after preparations are made. State v. Quick, 199 SC 256, 19 S.E. 2d 101, 103:"

21. Now, some discussion is required to elaborate the issue from Islamic point of view. It appears that "the Muslim jurists have not paid exclusive attention to the principle of "an attempt to commit an offence". However, they do make a difference betwecu a completed offence and incomplete or an abortive offence. They seem to be more concerned with the completed offence of Hadd and punishment and for this reason the Muslim Jurists have discussed the penal fir. offences in the general way, without elaborating their ingredients, elements, conditions and other details and that is why they have not paid much attention to the discussion of attempted offence as it falls within the category of Ta'zir which is generally left to the discretion of the Qazi, in the absence of codified law.

22. This statement should not, however, be taken to mean that the Shari'ah is little concerned with the concept of attempt to commit crime. The only difference is that in the modern criminology this subject has been separately dealt with whereas the Muslim Jurists do not treat an incomplete criminal act as an attempted offence because, in the Penal Law of Islam such unfinished acts that become crime comprise penal offences and are treated as separate substantive offences in themselves as liable to Ta'zir, a punishment other than Hadd and Qisas. The reason for this is that the committed act which constitutes part of the intended offence in itself is a complete crime in the eye of Shari'ah.

23. In fact the scope of Shari'ah in relation to the concept of attempted crime is much wider than that of the modern criminal law. The Shari'ah provides for punishment for every abortive or intended offence and there is no exception to this rule e.g. if a person raises a stick to strike to another man but a third person intervenes to prevent the first person, the first person will be guilty of an offence and liable to penal punishment (Ta'zir).

24. Abdul Oadir Awdah in his book l ~~,f.yl..yl jl:x,Jl ~,,~,I") part-1, pages 346-350 has discussed in some detail this concept of penal law in Islam. He has given certain examples, in paragraph 249 which are stated as under:-- He then distinguishes between the Shari'ah and common law, ai under A ~i _ .

25. The English rendering of the above passages may be read as under:-- "Stages of a Criminal Act and the Punishable Phase: The offender passes through various stages before he commits an offence. First of all he thinks of offence and then resolves to commit it. This stage is followed by preparation for the offence.and procurement of instruments and necessary means for committing it; for instance buying weapon of offence for murder, getting hold of instrument for breaking the wall of the house wherein larceny is to be committed or buying a key which may open the locks of the door. When the offender acquires all these accessories, he moves ahead into the third stage of putting his plan into operation. He does it as he thinks fit and translates his plan into action. These, then, are the three stages through which the offender passes in the commitment of an offence. Which of these stages constitutes culpable offence? Answer to this question is as follows: (a) Thinking and deciding is not a punishable offence. According to the Shari'ah, no man is accountable for whatever ideas come into his mind, whatever acts he thinks of doing or whatever he intends to say or do, for the Holy Prophet has said: `Allah has.forgiven the people belonging to my Ummah for the notions coming into their minds unless they utter them or put them into practice.' In short, one is accountable for one's word and deed and not for one's thought and resolution. This is one of the fundamental principles of the Shari'ah which it embodies right from the day of its revelation. It is the very principle found in all the modern laws. But it was introduced into them only at the end of the eighteenth century after the French Revolution. Before that if a mere criminal notion or intention could be proved, the offender was liable to punishment. Thus, the Shari'ah takes precetlencc of legislated laws in containing this principle. The man-made law has adopted the Shariat principle hundreds of years after it has been provided for originally. Besides, it should be borne in mind that the principle as provided for in the Shariah admits of no exemptions; whereas modern laws do contain exemptions: The Egyptian and the French laws, for example, distinguish between premeditated murder and unpremeditated wilful murder. In former case punishment and in the latter lighter punishment has been provided for. (b) Acquisition of Accessories The stage of acquiring accessories for committing an offence, too, does not comprise a culpable act. The Shariah provides no punishment for preparation for an offence by procuring means necessary to commit it unless of course, procurement or production of such means in itself is a crime. For example, if a Muslim intends to commit larceny by drugging somebody or getting him drunk, his procurement of an intoxicant and keeping such a prohibited thing in itself would be a punishable offence. Punishment for such an offence does not hinge upon the realization of the basic objective, viz. commission of intended larceny. The reason for excluding the procurement of the means required to commit an offence from punishable act is that only acts constituting crimes entail punishment. An act assumes the character of a crime only when it results in the violation oft lie right of God or right of the people. There is apparently nothing in the acquisition of accessories in preparation for the commission of a crime that may be tantamount to a violation of such tights. Even if these acts involve an element of transgression, such a transgression is amenable to construction and open to doubt; whereas the Shariah treats only those acts as punishable which are unmistakable crimes and whose criminality is unambiguous. (c) Stage of Commitment. This is the stage at which the acts of an offender turn into offences. An act is treated as an offence when it constitutes a crime; i.e. it transgresses the right of an individual or the community. It is not necessary that such an act should be the commencement of the material element of the crime in question. It is enough.that the act in question is an offence in itself and the object thereof is to translate the material element of a crime into action, even if there still remain many a step between the complete commission of the material element and actual act, as for example breaking the wall of a house in larceny or stealing into the house by breaking the door or opening the lock thereof with a false key. Each one of these acts is both attempted larceny and an offence in itself although many steps remain to be taken in order that the act may culminate in the crime of larceny. In short, if the offender breaks the wall, opens the door or steals into the house he will be liable to punishment for committing an offence or for attempted larceny although the real object of the offence is not achieved. Similarly, if a man goes into the house of a woman with the intention of committing adultery, sits with her in private, kisses and embraces her and does any other act involved in the case of adultery he will commit an offence, and will be treated as guilty of attempted adultery and liable to penal punishment. He will be punished for each one of the above acts, although there still remain many acts to complete the material element of adultery. However, Abu Abdullah Zuberi holds that a thief should be punished for committing an offence or attempted larceny when he is found near the house wherein he intends to commit theft having with him the requisite instruments to open the lock and break the wall, although he may not have broken the wall or opened the lock as yet. The same jurist is also of the view that the offender would be punished when he is caught lying in wait for the chowkidar to relax so that he may be able to steal the valuables guarded by the Chowkidar. (Al-Ahkamul Sultania, 206, 207). The criterion of punishment in the case of an attempted offence is that the act committed by the offender constitutes an offence, as for example, the act of breaking the wall. In order to find out whether or not an act amounts to a crime, the offender's motive is to be ascertained, inasmuch as the proof of the motive will dispel any doubt that may arise about the criminality of the act and delimit the nature of the offence it constitutes. Abu Abdullah Zuberi has laid great stress in the above examples on the motive or the intention of the offender. To lie in wait near the place where theft is committed may be designed to do something lawful. But the element of doubt will be eliminated from the motive of the criminal and the nature of offence will be determined. When the offender is found with necessary instruments for breaking into the house, there will be two possibilities; he intends either to commit larceny or do something lawful. But the real motive of the offender, when ascertained, would remove the element of doubt in his act and determine the nature of offence. Comparison between Shariah and Manmade Law. Modern laws are in agreement with the Shariah in so far as they do not admit of punishment at the stage of meditation and procurement of instruments, but confine punishment to the stage of actual commission. But the experts of man-made law differ on the question as to the initial phase of actual commission. The jurists of the materialist school hold that the initial phase of the material act constituting crime is the beginning of the commission thereof. If the crime constitutes a single act, then the initiation of that act is the beginning of the commission of the crime in question. But if it comprises many acts, then the initiation of any one of them is the beginning of the commission of the crime and not act. other than one forming a part of the crime will be reckoned as the initial phase of the commission thereof. On the other hand, the personalist jurists are of the opinion that to attempt an offence or commencement of any act is enough, which precedes the commission of material element of the crime and which necessarily leads to the commission thereof. These jurists try to determine the motive underlying a crime on the basis of the offender's personality. The position of the personalist school of modern legal thought is closer to the Islamic Shariat. The Shariat also enjoins punishment for the act which may be punishable according to this school. But the scope of the Shariah is wider than the view advocated by the personalists; for the ShLriah enjoins punishment for every offence, whether or not the offence leads to the commission of the material element of the crime intended; for instance, breaking the wall or opcning the lock with a false key. The Egyptian law follows the personalist doctrine and the judgments of the Egyptian High Court are based thereupon." (Islamic Criminal Law, Karachi, pp.41-45).

26. After going through the evidence with the assistance of the learned counsel and in the light of the above discussion on the point of attempt to commit rape, as alleged, I am clear in my mind that an attempt to commit rape has not been proved. It appears that some dispute was going on in the Civil Court between the mother of the appellant and P.W.2 uncle of the complainant. The accused might have asked for return of the loan. Mst. Zakia came out of the house and there was some exchange of hot words. The accused appears to have stretched out his hands, to kiss her as stated ny Mst. Zakia herself, by holding her arm. The sleeve might have been torn off and on appearance of P.W.2, the appellant might have taken-to his heels. Tire fact, however, does not go to making an attempt to commit rape on the complainant. Even intention to commit rape is not made out. Conviction under section 18 of Ordinance V11, is, therefore, set aside. There is, however, sufficient evidence to connect the accused with the offence under section 354, P.P.C. He, ordinarily should have been sentenced to two years' R.I., but in view of the fact as stated by the counsel at the Bar that his mothcr has re-married and there is none to look after his two sisters who are now at the mercy of a `Zamindar' of the locality, I sentence him to one year R.I. with benefit of section 382, Cr.P.C. The sentence of fine is also remitted. With the above modification the appeal is dismissed. M.B.A./628/FSC Appeal dismissed.