1998 PLP 312 (MLD)

ABDUL WAHEED SIDDIQUI, J.

Appellant has been convicted by the Court of Sessions Judge, Chakwal on 23-5-1996 under section 452, P.P.C. and has been sentenced to R.I. for 4 years and fine of Rs.5,000 in default a further R.I. for one year. He has also been convicted by the said judgment under section 354, P.P.C. and sentenced to 1-1/2 years R.I. and a fine of Rs.5,000 in default a further R.I. for 6 months. It has also been ordered that both the sentences are to run concurrently. The said judgment is silent about the extension of benefit under section 382-B, Cr.P.C. This judgment has been impugned by the appellant through his criminal appeal and by the complainant/petitioner through his criminal Revision. We propose to dispose off both vide this judgment.

2. Succinctly, the prosecution story is that one Zafar Iqbal (P.W.1) lodged F.I.R. (Exh.PA) on 8-10-1995 at Police Station Kalar Kahar alleging therein that his sister Mst. Farzana Kausar (P.W.2) aged 14/15 years was alone in the house one day earlier as other members of family had gone to attend a marriage ceremony in another village including himself. In the evening he came back to take his left over sister to attend marriage ceremony. He was informed by her that at about 12 hours while she had come out of bath room, the appellant having a churri in his hand frightened her and tried to take her inside the room for commission of rape while dragging her from the collar of internal shirt. On her alarm Ghulam Abbas and Mst. Akleem Begum (P.W.3) were attracted. On seeing them, the appellant climbed outside the wall and ran away.

3. At the trial, the appellant was charged under section 452, P.P.C. and Article 10(3) read with Article 18 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 to which he did not plead guilty. Prosecution examined 5 P.Ws. Appellant gave statement under section 342, Cr.P.C., declined to be examined on oath under section 340(2), Cr.P.C. and examined 2 D.Ws. in his defence.

4. We have heard the counsel for appellant, petitioner and State. The counsel for appellant has contended that the ingredients of sections 452 and 354 P.P.C. are not constituted; that there is delay of 2 days in lodging F.I.R. for which no plausible explanation is coming forthwith; that reliance has been placed by him on AIR 1925 Lahore 279; that medical report for virility test has not been obtained. The counsel for petitioner has contended that charge under Article 10(3) read with Article 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 stands established and, therefore, the punishment requires, under the law, to be enhanced; that D.W.2 had not appeared earlier during investigation. The counsel for State has supported the impugned judgment. He has contended that although preparation is there but the intention of rape is not coming up; that the room itself has four walls, hence a house trespass under section 452, P.P.C. stands constituted.

5. So far as the contention of unexplained delay of 2 days in lodging F.I.R. is concerned, the time of occurrence is 12 noon on 7-10-1995 and report has been lodged at 8 a.m. on 9-10-1995. It makes a delay of 44 hours. In F.I.R. (Exh.PA) the complainant's explanation is in the following words:-- In his deposition, Zafar Iqbal (P.W.1), complainant, has deposed as under:-- "Our house has a surrounding wall but it has no shutters. However, we enter in our house through an open passage. I came back home at about 4 p.m. from village Wasnal. My father is employed in United Bank and posted at Sargodha. He reached Miani Adda at about 2 a.m. on 8-10-1995. Ghulam Abbas P.W. went to Sargodha to inform my father about and then we reported the matter at P. S. Kalar Kahar. " Since the victim had not suffered any injury, and nape had taken place and family honour was involved in reporting the offence, then, while keeping in view other attending circumstances, it cannot be said that some deliberation was taking place. In fact, all were waiting for the head of the family who had to decide to report or not. The explanation is plausible. Sufficient shall be a passage from the book "Understanding the Rape victim" page 191 publication John Wiley & Sons, New York edition 1979 authored by experts like Sedelle Katz and Mary Ann Mazur of the Department of Psychiatry, Washington University, U.S.A:-- "Whereas most crimes permit complaints years later without undermining credibility, for rape the statute of limitations is 30 days in Colorado, three months in Connecticut, six months in New hampshire, 12 months in Massachusetts, and 18 months in Iowa. The majority of rape victims decided not to report at all. Instead of penalizing the victim who delays in reporting the case, she should be rewarded by kindness and consideration for her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being." In view of the abovementioned discussion this contention is repelled.

6. So far as contention regarding non-constitution of sections 452 and 354, P.P.C. is concerned, it needs elucidation. Section 452 reads:-- "House-trespass, after preparation for hurt, assault or, wrongful restraint.--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 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. " The term "house-trespass" as used in this section has been defined in section 442, P.P.C. which reads:-- "House-trespass:--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit 'house-trespass'. Explanation.--The introduction of any part of criminal trespasser's body is entering sufficient to constitute house-trespass." The learned counsel for appellant has taken a stand that the allegation is that the offence has taken place in a building used as human dwelling but in view of the following piece of deposition of Zafar Iqbal (P.W.1) the place where offence has allegedly taken place does not fall within the definition of a building. "Our house has a surrounding wall but it has no shutters. However, we enter in our house through an open passage. " This piece of evidence indicates that the courtyard of the building is not enclosed on all sides by walls and, therefore, the claim that all ingredients of section 452, P.P.C. are not constituted. Reliance has been placed on AIR 1925 Lahore 279(2) in which Scott-Smith, J. has enunciated the following principle:-- "Penal Code, S. 422--Building-Yard enclosed on 3 sides is not building. A courtyard enclosed by low walls on three sides only, is not a building. " We find that the case cited is distinguishable from the present case in as much as that in the said case, within courtyard not enclosed on all sides by walls, no room is appearing. In the present case, first of all the courtyard is enclosed on all sides by walls, but on one side there is no shutter and the family enters in the house through an open passage. Second point of distinction is that which has been deposed by Mst. Farzana Kausar (P.W.2) in the following words:-- "He tried to threaten me by waving his Churri and tried to drag me inside the room of our house with intent to commit Zina with me by holding me from the collar of my shirt from the neck side. " During cross she has deposed:-- "I had come-out from my bathroom at that time after taking bath The moment the accused caught hold of me from my shirt from neck side, I started raising hue and cry. The accused did not decamp on my raising hue and cry. " It appears that there are rooms and a bathroom within the courtyard surrounded by four walls. The existence of such residential rooms and a bath room surrounded by four walls has not been challenged by the defence any where in cross. Consequently, this contention of the appellant fails. Now we take up the matter of the constitution of section 354, P.P.C. 1t reads:-- Assault or criminal force to woman with intent to outrage her modesty.--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 counsel for appellant has vehemently argued that neither there is any mention of torn shirt (Exh.P-2) in F.I.R. nor Mst. Kausar (P. W.2) is referring to it in her deposition. It is Mst. Akleem Begun (P.W.3) who is first time making such reference to her deposition in the following words:-- "On the following day, the police came at the spot where Mst. Farzana Kausar produced her torn shirt Exh.P-2 before them which was taken into possession by the thanedar vide Memo. Exh.PC attested by me." In case this piece of evidence is excluded, dragging the victim from collar of internal shirt vanishes. Hence the ingredient of assault or using of criminal force is not found. We do not agree with this proposition. The silken internal shirt (Qamees Posheedani Reshmi) was recovered by police before independent witnesses vide Exh.PC. The victim Farzana Kausar (P.W.2) has deposed:-- "He tried to threaten me by waving his churri and tried to drag me inside the room of our house with intent to commit Zina with me by holding me from the collar of my shirt from the neck side. " During cross, she has herself made a reference to a torn shirt, although in her statement under section 161, Cr.P.C. (Exh.DA) it is not so mentioned. Even if this piece of torned shirt is not believed, yet showing churri and frightening a nubile virgin of 13/14 years and dragging her from collar is enough to constitute criminal force and outraging her modesty. We conclude that all the ingredients of section 354, P.P.C. are found and the offence is constituted under the circumstances of the case. Hence this contention is repelled.

7. So far as the counsel for petitioner's contention regarding constitution of the offence of Article 10(3) read with Article 18 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979 is concerned, it has its locus standi on the meaning of the word "attempt" as used in Article 18 of Offences of Zian (Enforcement of Hudood) Ordinance, 1979 which reads:-- "Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half or the stripes, or with such fine as is provided for the offence or with any two of, or all, the punishment. " The word "attempt" has not been defined in the statute. However, principles have been set by the superior Courts which do enlighten and even bound a Judge to apply the same in the circumstances of a particular case. We find that the only overt act done by the appellant/accused is frightening the victim with a churri and dragging her from the collar. The victim Mst. Farzana Kausar (P.W.1) considers it to be an intentional overt attempt for the commission of rape with her. We are not satisfied that it is enough to be interpreted as an "attempt" for rape for the reason that "intention" itself is a subjective mental condition of homo sapiens sapiens which is admittedly not justiciable. Unless a clear overt act indicating the intention of rape or any other crime sufficiently proximate to intended crime to form one of natural series of acts required for full execution of intent is not forthcoming. "attempt" is not constituted. In arriving at this conclusion we are fortified by Con v. Kocher, 60 A 2d 385, 386, 162 Pa. Super.

605. In Alford v. Common wealth,

42. S.W 2d 711, 713, 240 Ky 513 their lordships expounded attempt as "an intent to do a particular thing which the law, either common or statutory, has declared to be a crime coupled with an act towards the doing, sufficient both in magnitude and in proximity to the act intended to be taken cognizance of by the law that does not concern itself with things trivial and small. (Both citations are borrowed from "Words and Phrases" Vol. 4 A pp. 466, 467 publication 1969 West Publishing Co. MINN). The circumstances of the present case are that the overt act of the appellant is so trivial and small and is not sufficiently proximate to form one of natural series of acts required for full execution of the alleged rape, that we are not left with any other alternative but to hold the point of view of the impugned judgment correct and based on sound principles of law.

8. Another contention of the counsel for petitioner that Muhammad Hussain. (D.W.2) has been introduced suddenly as he had not joined the investigation earlier has no nexus with the conclusions drawn by the learned trial Court. Even if his evidence is excluded, yet. the conclusions are not affected even by an iota.

9. The appeal and criminal revision were dismissed and the conviction and sentences of the appellant were maintained with the extension of the benefit of section 382-B, Cr.P.C. on 5-3-1997 by a short order. These are the reasons for the said order. N.H.Q./1145/FSC Appeal dismissed.