P L D 1993 Federal Shariat Court 21 (PLP)

MUHAMMAD ILYAS, J.

‑‑This is jail appeal by Muhammad Sher son of Said Muhammad, caste Gujjar, aged 32 years, resident of Sadiqabad, Rawalpindi, against judgment, dated the 4th August, 1992, passed by the Sessions Judge, Rawalpindi, whereby he convicted him under section 11 and subsection (3) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Sessions Judge awarded him the sentence of life imprisonment, whipping by twenty stripes and a fine of Rs.10,000 or, in default, to undergo rigorous imprisonment for a further period of two years, for offence punishable under section 11 of the said Ordinance. He also sentenced him to rigorous imprisonment for twenty‑five years and whipping by thirty stripes for offence punishable under subsection (3) of section 10 of the above Ordinance. It was directed by the learned trial Court that the sentences shall run concurrently. The appellant was also allowed benefit of the provisions of section 382‑B of the Code of Criminal Procedure.

2. Prosecution story is that Hasiba Kausar, a minor girl of about 5‑ years in respect of whom the said offences were committed was a student of class ‑ I in M.C. Girls Primary School, Shakrial, which falls within the municipal limits of Rawalpindi. As her house was near the school, she used to go home during recess for taking meals. On 5th March, 1990, after recess when she was returning from her house to the school, the appellant took her to another house which was under construction and forcibly raped her on the upper floor of the said house. Thereafter, she was thrown outside the school. The unfortunate girl was spotted by the Head Mistress of the school when she was unconscious and profusely bleeding. Intimation in this behalf was conveyed by the Head Mistress to the mother of the girl whereupon her mother came to her daughter and took her to the General Hospital of Rawalpindi. There, she was medically examined and also given treatment. Father of the girl, who was employed at Kahuta, came into contact with her mother when the girl was being taken to the Hospital. He reported the matter at the Police Station Sadiqabad, Rawalpindi, by making an application, Exh. PA whereupon formal F.I.R. Exh. PA/3, was recorded.

3. Investigation of the case was in progress when the appellant confessed before a Councilor of Shakrial and others that he had committed rape with the girl. At that time, she also identified him as the person who had done the brutal act with her. On the conclusion of investigation, the appellant was sent up before the learned Sessions Judge to face trial which resulted in the judgment under appeal.

4. During his submissions, it was frankly conceded by learned counsel for the appellant that Hasiba Kausar, who was a girl of very tender age, had been ravished in a cruel manner and added that whosoever was responsible for perpetrating this crime deserved to be severely dealt with. His argument, however, was that the prosecution had not been able to establish, beyond reasonable doubt, that it was the appellant who had committed the offences involved in this case. We would, therefore, confine our examination only to the identity of the appellant.

5. In our opinion, most important piece of evidence connecting the appellant with the offences to which this ease relates, is the evidence of extra judicial confession. This confession was made by the appellant before a Councilor, Azhar Iqbal Satti (P.W.10) in the presence of Altaf Hussain (P.W.8). At the time of the aforesaid confession, Hasiba Kausar (P.W.9) also identified the appellant as the person who had subjected her to brutality. Earlier, a similar occurrence had taken place in respect of another student, namely, Nabila. Her brother Muhammad Naheed appeared as P.W.13 and deposed that when the appellant made the said confession Nabila identified the appellant as the person who had ravished her also.

6. Learned counsel for the appellant did not find any fault with the evidence of Azhar Iqbal Satti and Altaf Hussain. We are, therefore, satisfied that the appellant had confessed his guilt qua Hasiba Kausar. The appellant was also identified by Hasiba Kausar at the time of extra‑judicial confession as well as before the learned trial Court as the cruel person who had forcibly subjected her to sexual intercourse. Nabila too had said that she had been raped by the appellant earlier. We are, therefore, convinced that the appellant was in the habit of catching hold of small girls for satisfying his sexual lust and this time Hasiba Kausar fell prey to his nefarious designs. Accordingly, we have no hesitation in repelling the plea of learned counsel for the appellant with regard to identity of the appellant.

7. Since the only argument raised by the learned counsel for the appellant against the conviction of the appellant is without substance, we uphold his conviction on both counts.

8. As for the sentence, it was submitted by the learned counsel for the appellant that since the appellant was overpowered by sexual urge at the time of the commission of the offences, the sentences imposed on him may be suitably reduced. We, however, do not consider it as a mitigating circumstance. According to the teachings of Islam, in case any person has become a major, he should get married and if he is unable to do so, he should remain chaste and resort to fasting. Qur'anic injunction in this regard reads as follows:‑‑ (Let those who find not the wherewithal for marriage, keep themselves chaste, until God gives them means): Al‑Nur 24:

33. In this connection, saying of the Holy Prophet (may peace be upon him) is to the following effect:‑‑ (O! Young people whoever among you is able to marry, should marry, and whoever is not able to marry is recommended to fast, as fasting diminishes his sexual power): The Translation of the Meanings of Sahih Al‑Bukhari, Vol. VII, page

3. If an unmarried person is overpowered by sexual lust, he should exercise restraint, as ordained above, and if he cannot restrain himself, then the law must restrain him from playing with the honour and chastity of others. If the appellant had a sex problem and could not get over it in a decent manner, this did not give him a licence to ruthlessly ravish girls of tender age. As noted in the beginning, it was maintained by learned counsel for the appellant as well that whosoever had committed the heinous offences involved in this case deserved to be dealt with drastically. We are also not oblivious of the fact that horrible incidents like the one involved in this case are being frequently reported in the Press: All this calls for deterrent action against those who, though created as human beings act in inhuman manner and commit such brutal and shameful acts as may not even be indulged in by beasts. For these reasons, we decline to reduce the sentences inflicted on the appellant.

9. To our mind, the judgment under challenge does not suffer from any infirmity and there is no justification for interfering with it, in any respect. This appeal, is accordingly, dismissed. N.H.Q./791/FSC Appeal dismissed.