' GUL MUHAMMAD KHAN, C. J.-This order shall also dispose of Criminal Revision No, 6/I of 1985, which has been filed by Ghulam Muhammad, complainant for the enhancement of sentence awarded to the appellants. The appellants were convicted by Mr. Muhammad Ashraf Khan, Additional Sessions Judge, at Gujrat on the 22nd of October. 1984, under section 18 read with section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 7 years' R. I., each with 10 stripes.
In default of payment of fine they were to undergo 6 months' each further. They were also convicted under section 452, P. P. C. And sentenced to 5 years' R. I., each with a fine of Rs, 1,000 each. In default of payment of fine they were to suffer 6 months' R. I., each further. The main sentences are to run concurrently.
2. The occurrence took place on the night between the 9th and 10th of January, 1983. It was reported at 6.05 p. m" on the 12th of January,1983 through an application of Ghulam Muhammad, P.
W. 7, a teacher and the husband of the victim Mst. Ghulam Fatima, P.W.
2. He stated that while he had gone out in connection with `Tabligh' the two appellants scaled over the wall of his house and knocked at the door of the room of his wife, Mst. Ghulam Fatima, P. W.
2. She enquired as to who they were. The appellants stated that they were students and had come to fetch some Ghee for her husband, Ghulam Muhammad, who had suffered an electric shock. Mst.
Ghulam Fatima, P.W. 2 opened the door. The appellants entered the house and asked her to go with them so that they would satisfy their sexual lust. Mst. Ghulam Fatima refused to concede their demand on which the appellants attempted to physically lift her away. The efforts of the appellants failed when the mother of the complainant, Mst. Rehmat Bibi, who was in the other room woke up and reached the spot. The appellants gave beating to her also. Javed Iqbal, appellant put `Dupatta' of Mst. Ghulam Fatima around her neck and sat on her chest while the other appellant secured the mother-in-law. Meanwhile Nazir Ahmad and Ejaz Ahmad, P. Ws. Heard the noise and reached the spot. The appellants scaled back over the wall and went away. The formal F. I. R. Was recorded by Ghulzar Hussain, Head Constable, P. W.
6.
3. Doctor Fiaz Abmad Ranjha, P. W. 1 medically examined Mst. Ghulam Fatima on the 11th of January, 1983. His report is Exh. P. A. He also examined Mst. Rehmat Bibi on the same day vide his report Ex. P.
B. The Police then challaned the case.
4. The prosecution examined 8 witnesses in support of its case. Gulzar Hussain, P. W. 6 testified to have correctly recorded the F. I. R. On the application made by Ghulam Muhammad, P. W.
7. P.W. 7 supported the contents of his F.
1. R. Mst. Ghulam Fatima, P.W. 2 and Mst. Rehmat Bibi, P.W. 3 narrated their version as given in the F. I.
R. Muhammad Anwar, P, W. 4 had reached the place of occurrence and supported his part as given in the F. I. R. Muhammad Akbar, P. W. 5 is the witness of the recovery of shirt and `Dopatta' of MSt.
Ghulam Fatima which was torn during the struggle. Muhammhd Ashraf, S. I., P. W. 8 is the Investigating Officer.
5. The appellants in their statements under section 342, Cr. P. C. Denied the occurrence and stated that they had been involved due to enmity as the ladies of the two sides had a quarrel. He also produced Mutalli as D.W. 1 but his evidence is not of much use. The trial Court rejected the defence version and convicted and sentenced the appellants, as stated above.
7. It is contended by the learned counsel for the appellants that though there was sufficient evidence on the record to prove an offence but the conviction of the appellants under section 18 of the Ordinance VII of 1979 was not justified. It is contended by him that except for the bare statement of Mst. Ghulam Fatima, P. W. 2 that the appellants had asked her to go out with them there is no other evidence, whatever. He also assailed the delay of about 3 days in lodging the F. I.
R. It is to be noted that the complainant explained the delay by saying that her husband had gone out for `Tabligh' without telling his destination. She, therefore, waited for him to return and the report was lodged thereafter without delay. This explanation is quite plausible and is accepted.
7. The learned counsel also challenged the conviction to say that the facts brought on the record by the prosecution do not show that there was any intention to commit an offence of Zina or to abduct/kidnap for the purpose of illicit intercourse. He relied on Yaseen v. State (1) and Pak Muhammad v. State (2) of the same book. He also referred to Shaukat v. State (3). All three cases have been discussed in the latter part of this judgment.
8. The learned counsel also challenged the conviction under section 452, P. P. C. Pleading that the facts on record did not cover it. The reason given was that no preparation had been made for the commission of the offence. The question whether there was a preparation or not is to be seen keeping in view the requirements of the particular offence itself. If two youths trespass into a house to assault a woman they have only to be mentally prepared for it. There is thus no merit in this plea either. He further stated that as the appellant had not been charged under section 10 of the Ordinance VII of 1979 the conviction cannot be altered to fall under this provision in view of section 338, Cr. P. C. And the law laid down in Mst. Zaitoon v. Samundar Khan) (4). The last contention is generally incorrect as the appellants were charged under sections 11/18 of the Ordinance VII of 1979 and also convicted thereunder.
9. It will be seen that the complainant is a teacher in the school and is also a follower of the `Tablighi-Jamaar. He was out on 'Tabligh' on the eventful night. No enmity with the family of the complainant has been shown and nothing adverse is said about the conduct and character of Mst.
Ghulam Fatima, P. W. 2 or her mother-in-law, Mst. Rehmat Bibi, P. W.
3. The occurrence was seen by Mohammad Anwar, P W. 4 also. The learned counsel for the appellant is not in a position to point out any defect in the prosecution case. He rather candidly stated that the evidence on record did spell out an offence but that can be covered only by section 354, P. P. C.
10. The objection that the offence did not fall under section 18, read with section 11 also has no merit.
It is to be seen that section 11 pertains to the abduction or kidnapping of a person for the purpose of Zina Section 10 is about the actual commission of the offence of Zina. The case of the prosecution was that the two appellants had trespassed into the house of the complainant by scaling over wall at about mid-night. They got the door of the room opened by a false pretext. However, immediately on the opening of the door they expressed their intention and attempted to forcibly take Mst. Ghulam Fatima away, probably for the reason that her mother-in-law was sleeping in the other room. They persisted in their attempts to forcibly take her away but they did not succeed.
Even their conduct in the presence of Mst. Reh.Mat Bibi P. W. Shows that they had the intention of taking her away after securing Mst. Rehmat Bibi. In the circumstances, it cannot be said that the appellants had no intention to take her away. Again, the appellants had completely denied the occurrence in their statements under section 342, Cr. P. C. The case of the prosecution on the other hand, was that the appellants after trespassing in the house and getting the door of the room opened, made their intention of committing Zina with Mst. Ghulam Fatima clear. The appellants have not assailed the factual situation as emerging from the evidence but have challenged only the factual
(I) PLD 1983 F SC 53 (2) PLD 1983 F SC 165
(3) P L, D 1982 F SC 179 (4) PLD 1955 13 I 9 and legal inferences therefrom Mst. Ghulam Fatima, on the other hand, was quite explicit that purpose of trespass expressed by the appellants was the commission of illicit intercourse. As a matter of fact no other purpose can be gathered from the evidence brought on the record.
10-A. The question requiring determination is whether the circumstances did show that it was a case of attempt to commit Zina or the offence would fall only under section 354, P P. C. As the evidence brought on record is not being assailed, we cannot see what could be the other purpose of the appellant in scaling over the wall of the house of the complainant at mid-night. They also got opened the door of the room under a false pretext and attempted to forcibly take Mst. Ghulam Fatima away, after telling her that they wanted to commit sexual intercourse with her. On her resistance, they . Did not stop and run away but continued their assault. They assaulted even the mother of the complainant when she intervened. The learned counsel, however, pleads that as the appellants had not taken Mst. Ghulam Fatima out of the house, the verbal threat or even the physical assault as described by the witnesses did not amount co attempt to abduction.
11. According to section 362, P. P. C. Abduction takes place if a person is compelled by force or induced by any deceitful means to go from e, any place. In the case in hand, if Mst. Ghulam Fatima had been taken out of the house, the offence would have been complete. In Allu v. State (1) when a woman was forcibly lifted from her cot on the roof and then dropped on the roof where she raised alarm, the accused were convicted for attempt. The learned counsel then argued to draw a distinction between attempt and preparation and pleaded that the act of catching and telling Mst.
Ghulam Fatima that she was to be taken out for rape was at the most an act of preparation and so not punishable as an attempt.
12. Before deciding this question, it will be useful to survey the legal situation, obtaining on this point, before the enforcement of the Islamic Hudood Laws. Under the law prevailing in England and the Sub-Continent the Courts have determined. Four stages in the commission of a crime; the intention to commit, the preparation to commit, the attempt to commit, and if the third stage is successful the commission itself, as also held in Asgharali Prabandhia v. Emperor (2). Generally, but not necessarily, there is a motive behind every offence which sets first the thinking faculties in operation. If resolve is made to taking any action it is spelt out as an intention to do that act.
13. Intention is defined as foresight of consequences and a desire to bring them about. Intention thus is a state of mind which, it is said, is not known even to the devil. So a Court can judge the state of a man's mind only by making inferences from his conduct, as displayed before or after the commission of the offence and generally an external standard is adopted in adjudicating upon the weight of the evidence so adduced. But one who simply intimates his intention to commit an offence, commits no offence, as he might. At any time, change his mind before actually committing the same, as he held in Chandi Ram v. Emperor (3).
14. The preparation stage comes, thereafter. It consists in devising or arranging means necessary for commission of the intended act. Thus G mere obtaining thumb-impression on a blank paper or obtaining signature _(1)AIR 1925 Lah. 512 (2) AIR 1933 Cal. 893=35 Cr. L 3 97
(3) AIR 1941 Lab. 301 slip at the Polling Station fraudulently were found to be acts of mere preparation and no offences under section 171 (f ), read with section 511, P. P. C., as held in Malkhan Singh v. Emperor (1) and Shen Prashad etc. v. Emperor (2) . It was held in Walidad v. Emperor (3) that presence on roof of a house is not attempt at house breaking but only preparation. The distinction is that all the above steps prepare the way for the intended offence and are not directly linked with the intended offence. On the other hand an accused who was found to have made a hole in the outer wall of the complainant's cowshed, was surprised and arrested by prosecution witnesses after a .Chase. The Court held in Umar Ali v. The State (4) that in circumstances, he had advanced beyond stage of preparation and was attempting to commit offence under section 457, P. P. C. The Pakistan. Penal Code also makes culpable some acts of preparation as under section 399, P. P. C. Assembling for the purpose of committing dacoity under section 402, P. P. C. And attempting to commit dacoity under sections 393 and 398. That will also mean that wherever the Legislature wanted to convert even preparation into an offence it has done so expressly.
15. Having done the preparation the perpetrator is ready to attempt the commission of the intended offence. Any direct movement, thereafter, towards the commission of the intended act, is considered an attempt toles do it. Reference be made to Lakshami Prashad v. Emperor (5). The Daccal High Court in Enayatullah and another v. The Crown (6) ruled that an "attempt" is the direct movement towards the commission after the preparation has been made. The Court observed that mere wrongful confinement, unattended by any overt act, signifying an intention to commit extortion, cannot come up higher than the stage of preparation. An attempt to commit a crime must be something more than mere preparation and, acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it.
16. Thus to constitute "attempt" there must be evidence of some overt act linked with the intended offence and the attempt is complete if the accused does an act which is a step towards the commission of the specific crime as held in Crown v. Naseer Ahmad (7). 'Attempt' was said tol, be some external tangible act showing progress towards the actual commission l' of offence in Paira Ram v. Experor (supra). An English Court in R. v. Miskell (8) remarked tbat an act cannot be sufficiently proximate and must be too remote if acts complained of themselves do not raise a presumption of mens rea. A criminal attempt bears criminal intent upon its face and the thing speaks for itself. The test laid down by the Madras and the Andhra Pradesh High Courts is that if an act would lead inevitably to the commission of the offence, unless something which the doer of the act neither foresaw nor intended, happens to prrvent this, it is an attempt to commit an offence. In re: Parduranga etc. (9) and E. Raman Chettier v. Emperor (10).
17. The Corpus Suris Secundum (22 Corp. Jur. Section 137, states that intent is a quality of mind and implies a purpose only while an attempt
(1) AIR 1925 All. 226
(3) 15 P R 1907 Cr.
(5) AIR 1923 Pat. 307
(7) PLD 1955 Lah. 430
(9) AIR 1962 Andh. Pra. 257
(2) AIR 1926 Pat. 267
(4) 1968 P Cr. L J 1857
(6) PLD 1957 Dacca 279
(8) (1954) 1 All E R 137
(10) AIR 1927 Mad. 77 implies an effort to carry that purpose into execution. Thus in order that there may be an attempt to commit a crime there must be some overt ac iv in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual, consummation. Attempt to commit a crime in the view of the American law also consists of the same elements; as given in para. 12 above. The position into 21 American Jurisprudence 2nd page 102 improves upon our ordinary law and states as under :- "Other cases state that while the act need not be the last proximate act to the consummation of the offence, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offence after the preparations are made.
It has been said that some appreciable fragment of the crime must have been committed. Some cases emphasize the immediate and direct tendency to bring about the principal crime, and the power of defendant to carry his intention into execution.
' However, it has also been held that the reason for requiring an overt act is that without it there is too much uncertainty as to what the intent actually was. From this point of view, what is needed is an act which makes the intent unequivocal. Some confirmation of the latter view may be found in holdings that whenever the design of a person to commit a crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.
' Again American law does not recognise the concept of physically impossible attempt if the crime was apparently possible to the reasonable apprehension of the accused (p. 193).
20. The Supreme Court of Pakistan in Abdul - Illajid v. The State (1) similarly observed that an attempt to commit a crime consits of (i) the intent to commit the crime, (ii) performance of some act towards the commission of the crime, and (iii) failure to consummate its commission on p account of the circumstances beyond the control of the offender. The test whether there has been an attempt to commit a crime, is a factual one by reference to these ingredients. It was held in the following Dacca case that an attempt to commit crime should not be confused with the act of merely indicating intention to commit crime or with mere preparation for its commission and attempt is not complete unless act has passed beyond stage of preparation. See The State v.
Basirullah (2). Thus the accepted position is that attempt is an intentional act which a person does towards Q the commission of an offence but which fails in its object through circumstances independent of the volition of that person. See also State of U. P. v. Ram Charan (3).
21. Some of the following decisions will, however, show that despite' the guidelines and various tests given above, it has not been easy for the Courts to segregate with precision or exactitude the four compartments of this division or to lay down bard and fast rules for the purpose or to drawl right lines to completely separate them.
22. Where a person brought a married woman to his place to have sexual intercourse but was interrupted at once, it was held to be a mere preparation in Piara Ram v. The Emperor. A lady travelling alone in a train
(1) 1973 SCMR 108 (2) PLD 1964 Dacca 170
(3) AIR 1962 All. 359 woke up and found the accused sitting on her berth. She tried to reach the communication cord but he caught hold of her and began to unbutton his trousers. After another unsuccessful struggle accused apologized for molesting her. It was held, he is guilty under section 354, P. P. C. And not of attempt to commit rape. See G. V. W. Jones v. Emperor (1). It appears that in both the above cases the accused was determined to commit the offence but was prevented by something beyond his control, yet the acts were not held to be of the nature of attempt.
23. As against that a lad of 18 made, a naked girl of 5i years sit on his thighs. There was no bleeding from the private parts and her hymen was intact except redness at the entrance to vagina. He was held guilty of attempt in Mahraj Din v. Emperor (2). In yet another case, the accused put his finger in the private part of the complainant. There was no mark of semen on her Pyjama nor any marks on the male organ. Held in Sadhu Singh v. King Emperor (3) that he is guilty of attempt. It appears that in both the cases the accused had the opportunity to commit the offence but he did not avail that.
Despite that he was convicted for attempt.
24. Some of the decisions quoted above pose no difficulty but other do go to show that the dividing line between preparation and attempt is very uncertain. There appears to be no difficulty in cases where th preparatory steps can be easily isolated from the steps to be taken towards the commission of the offence but it is not so in others. Another rule laid down also appears to be quite settled that even if the offender had gone beyond the stage of preparation, he was not to be punished for attempt if the act though connected with the intended offence was not proximate but remote, for the reason that it was still open to him to change his mind. This rule also appears not to have been followed as the offender in all the above cases, where he was convicted for attempt, could have changed his mind in the course of the remaining direct acts, towards the intended offence, if he was not apprehended.
25. Recently, a case involving concept of attempt was decided by the House of Lords. Lord Hailsham of Marylebone L. C, in the case of Reg v. Smith (4) quoted definition of 'attempt' from earlier English sources to say that "An attempt to commit a crime is an act done with intent to comity that crime and forming part of a series of acts which would constitute its actual commission if it have not been interrupted". This definition, however, did not help him about the point of time at which series of act begin. He then quoted another source which said "It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime." The term `actus reus' was explained to mean that "An act does not make a man guilty of a crime unless his mind be also guilty." The above view appears to be more helpful than the one given by Lord Reid at page 499 of the same report to say that it must be left to common sense to determine in each case whether the accused has gone beyond mere preparation.
26. Their Lordships were also faced with another problem in that case. The question whether a prisoner can be convicted of an offence of 'attempt'
(1) AIR 1925 R. 247 (2) AIR 1927 L. 222
(3) AIR. 1923 L. 167 (4) (1975) A C 476 if it is found out that it was either legally impossible to commit the crime (stealing something which ultimately turns out to be his own) or physically impossible, for example putting hand in an empty pocket or shooting on a block of wood believing it to be a man who was his deadly enemy. The rule pronounced by the House of Lords was that no offence was committed in any of the above cases. It may be noted here that the view, on the above points, has been varying from time to time. Uptil 1883 the English Law did not know the concept of 'legally impossible attempt, and it appears to have been invented in R. v. Miller (1). Anyhow, Professor H. L. A. Hurt has criticised the above judgment of the House of Lords in his essay saying, "It does not, however, appear to offer comfort to those who find the acquittal of the accused in R v. Collis (2) or the dishonest clerk in Partington v.
Willians (3) contrary to 'Common Sense and Common Justice.' (See Crime, Proof and Punishment, Essays in Memory of Sir Rupert Cross) published in 1981 by Butterworths, London.
27. Here, I would like to refer to some of the cases of this Court to point out the same difficulty which has been mentioned above. In Muhammad Aslam v. The State Cr. A. No, 142/1 of 1981 the appellant trespassed into the house of the complainant at late hours of night, reached the bed of the prosecutrix, untied the string of her trousers and started `Chher-Chhar' with her. A Bench of the five learned Judges held it amounted to attempt to commit Zina. The notable aspect of the case is that the learned Judges split up some of the possible steps in the commission of such an offence, such as untying the `Azarband' of the `Shalwar' of the prosecutrix, removing the `Shalwar' itself, trying to lie upon her, catching her legs and committing actual sexual intercourse. According to them such acts collectively and individually would constitue an attempt for Zina-bil-jabr as, such acts are committed immediately before the actual sexual intercourse. The distinction in their view was between the immediate and not so immediate acts and not the acts leading to the offence. As will be discussed later, this approach is much nearer to Islamic law though not exactly so. One thing however, may be noted that in this case also the appellant had yet to take a number of steps to reach the final position and could have retracted at any time.
28. In Pak Muhammad etc. v. State (4) This Court observed that if a young man and a young woman undressed themselves and the woman lies naked on the cot and the man is standing naked there, they, being consenting parties shall be deemed to have gone beyond the stage of preparation and are attempting to commit Zina and, but for the outide intervention they would have performed Zina. The fact that the accused was standing naked could not supply the basis to hold that the parties were bound or attempting to commit Zina. A different position appears from the following case of rape Yaseen v. State (5). The appellant was lying on Mst. Sardaran and was trying to make her naked by removing her Shalwar. The medical evidence showed there were marks of violence on the person of the woman, but the conviction was recorded not for attempt to commit Zina but under section 354, P. P. C. Here, the appellant had done all what he could but was prevented by something beyond his control, to achieve his objective.
29. The case of Shaukat v. State also attracted a very detailed and thought provoking judgment keeping in view the ordinary law, from Aftab
(1) (1965) 49 Cr. App. R 241 (2) (1864) 9 Cox. C C 497
(3) (1893) 1 Q B 320 (4) PLD 1983 F SC 165
(5) PLD 1983 F SC 53 Hussain, C. J. The other two learned Judges of the Bench, however, did not agree with him. Aftab Hussain, C. J. In this case surveyed most of the case law of the sub-continent on the point and the judgment contains very elaborate discussions as to when it was a case of attempt and where of preparation (PLD 1982 F SC 186). The learned Chief Justice, as he then was, also referred to the Full Bench case of Muhammad Aslam (para. 25 above) and observed in para. 10 as follows.
"If the analogy is taken to its logical conclusion, it should follow that the offence of rape being an offence requiring actual penetration, the attempt at rape must be an attempt at penetration which would involve catching of the member of the fair sex in such a manner that penetration might be facilitated. As between the removal of Shalwars of the male and female and the actual coitus some step to lay the female, or at least to catch her is necessnry so as to bring her to the position in which coitus may be possible. The closest analogy can be obtained by the hypothetical case of attempt to commit Zina and not Zina-bil-jabr. If the male and female who consent to commit Zina take off the clothes of one another it would clearly amount to preparing for the act of coitus. But for actual commission of the Zina other acts e. g. Adopting the position of coitus or embracing with a view to adopt that position would be necessary and those acts short of actual intercourse would form attempt."
30. Commenting on the Full Bench Judgment, he observed that although definition of attempt and some other material had been relied upon but the question required further consideration, particulary, in view of some precedent cases. He then referred to Indian as well as English case-law at length and was of the view that stripping naked whether of the female or of the male is an act of preparation only except where the removal of the girl's Shalwar was the result of struggle which continues even after that in order to possess her. While applying the view to the facts of the case he concluded that appellant by entering the house by scaling over the wall and kissing the appellant, proved his intention to commit Zina while the removal of the Shalwar of the prosecutrix and that of his own constituted acts of preparation. However, before he could assault her for a successful cohabitation, the witnesses were attracted by the alarm raised by the prosecutrix. There was thus no attempt to commit Zina-bil-jabr. As said above the other two learned Judges dissented with the above view after elaborate discussion of case-law and held that removal of the Shalwar of an unmarried girl of 14 years and giving a bite on her cheek by a stranger would amount to an attempt to commit rape.
31. Two important situations emerge from the above discussion. The case-law piled up so far has not been able to demarcate clearly where the borders of preparation and attempt meet. Secondly, even the Federal Shariat Court has not so far looked at the problem from the Islamic law view- point. We, therefore, find it imperative to be certain, if the legal situation on the point, as discussed above, is in accord with Islamic law or there is some notable difference. The problem with the ordinary law seems to be that the extent and the scope of words "devising or arranging means necessary for the commission of the intended act", as mentioned in para. 14 above seem incapable of being correctly appreciated and applied in every case. Similarly, the words used in the American view for preparation, if they could have been applied correctly, might have, at least, brought uniformity. The American Courts defined the "attempt" as 'an act done in part execution of a criminal design amounting to more than mere preparation but falling short of actual consummation. The 'preparation' on the other hand was described as 'devising or arranging means or measures necessary U for the commission of the offence'. The preparation thus stops where the1, first step is taken directly towards the commission of the intended act.
32. The early Jurists of Islam classified offences as complete and incomplete but did not divide them into the modern segments of intention,` V preparation, attempt and the complete act. Like the ordinary law, in, the Islamic Shariah also no punishment is due for mere intention to commit a crime. In this connection the Holy Prophet (p. b. u. h.) said," {{ARABIC TEXT}} "Allah has pardoned the intentions of my Ummah until these are translated into action or the words are uttered." It clearly means that unless a person actually commits any offence (...f..,a...) he will not be " punished for a mere intention to commit that. Another tradition of the x Holy Prophet is "c...,1,.:.114 j..,c. 'J L.;I" meaning thereby that act and intention must combine to attract any effect. There is yet another saying" {{ARABIC TEXT}} `He who intended a good deed but did not act on it shall be rewarded but if he intends a wrong deed but did not translate it into words or action nothing will go to his discredit. Of course what is in the mind of a person is not known till he does an act or talks about it. This is what we get from the Holy Qur'an, verse 9 : 46.
33. The stage of preparation (c:01-61j.1 csaills) that is devising 09 arranging means necessary for the commission of the intended act, is,2 also not a crime in Shariah except when this preparation itself is a crirne4 For example, if a person procures an intoxicant to administer it to another in order to steal his goods, he will be liable, not for preparation but for the keeping of intoxicating material which is by itself an offence. The reason is that such acts are not integral or necessary parts of the intended act and some other act will be undertaken to initiate the commission of the intended act.
In the above example a subsequent act of going, to the place of theft for the use of the intoxicant and theft, will take it beyond preparation and will attract punishment, as also discussed later.
34. Shariah differentiates, in respect of an attempted offence, between Hudood and `Taazie only to the extent that no punishment under Hadd can be given for an incomplete Hadd crime and punishment for that also will be as `Taazir'. Again the sentence under `Taazie for that offence cannot be equal to the sentence of the completed offence. The latter principle applies to the `Taazie offences also. In this connection the Holy Prophet said " {{ARABIC TEXT}} "He who punished a person with Hadd punishment in a crime less than Hadd is among the transgressors". It is for this reason that attempt in a Hudood and Qisas case is not liable for Hadd and Qisas punishment. For example attempt for adultery will not be punished with 100 stripes or stoning to death. Similarly, an attempt for a theft will not be punished with amputation of hand.
35. Any-how the jurists are united on the point that if a person commits an act which is wrongful in Sharia he is liable to be punished either under the Hadd or Taazir, as the case maybe. According to J-.11?.11,.....444, Vol. VI, pages 319-320 means that act the doing or omission of which is declared by Sharia. To explain it further it is that act which adversely affects the rights of individuals on the society or interferes with the peace and tranquility. (5)1.-k,i-4.:)_.01:4) by Abdul Qadir Audah). So any State can declare any act as an offence if it can be justified on principle by a direct authority from Qur'an or he Sunnah of the Holy Prophet (P. B. H). In this situation even the distinction of complete or incomplete offence also may not be of much importance as regards punishment, inasmuch as the deciding factor is the nature of the act and not its stage or gravity. But, no Hadd c punishment can be given for an incomplete offence. The quantum of c punishment where it is `Taazir' will also be left to the Qazi or the State legislature. Thus, it is clear that the Hudood crimes will not be punished with Hadd punishment until they are completed in all respects. Taazir punishment will, however, be given in any other situation including attempt, in all wrongful acts.
36. It may also be mentioned here that when a person intends to commit a crime, and takes all possible steps to consummate it, the offence may either by finally completed or may remain incomplete, for any reason. If the offence is completed, the doer is liable for full punishment.
However, if his intention to commit was frustrated by something beyond his control, he will be liable for commencing the offence and in the terminology of today for attempt. On the other hand if the non-completion of the offence is based on the volition of the doer, irrespective of the fact whether the retraction was for repentence or any other consideration, he will not be punished unless any of the acts done were independent offences. (At-Tashriu al-Janainful Islami by Abdul Qadir Auda, Haraba is an exception even in that. Vol. I, pages 435-440 (Urdu translation). This legal situation is co-existent both in the ordinary as well as the Islamic law.
37. According to ordinary law, preparation to commit a crime is not culpable or punishable as an attempted offence if it had not reached a stage where it be termed as an act leading to the offence. For example, if a person made some instruments which are used in the commission of theft, he will not be considered as thief, and if a person purchased some arms to kill he will not be considered a murderer. According to Abu Hanifa and Shafie also, preparation to commit a crime is not punishable or culpable except when this preparation itself is a crime. They argue that the commission of the crime is still dependent on his volition and it is quite possible that the planner may change his mind before committing the wrongful act. (AI-Jarima by Abu Zuhra, pages 357- 369). The distinction between the ordinary and the Islamic law enters the field at this stage. The cases under the ordinary law referred to above, particularly paragraph 22, show that if an accused brought a married woman to his place for the purpose of Zina he committed no.Offence. Even the entry of the accused in the berth of the lady and the effort to assault was also not considered objectionable. All the cases of this Court referred to in paragraphs 26, 27 and 28 above were also decided on the principles of the ordinary law and not Sharia.
38. Attempt, in Islamic jurisprudence, begins with' the first step' towards the commission of the offence. Thus any act showing progress towards the actual commission of offence constitutes attempt and all that goes before it is known as the intention to commit, the resolution to do G it and preparation. In Sharia the modern concept of "preparation" lies G with the "intent and resolution" on the one side and "r.e..j UT" starting point of the offence on the other. The schools of thoughts of Malik and Ahmad go further and say if, what is said or done, is connected directly with the intended wrongful act it is punishable under `Taazir'. Their view may be supported by the tradition of the Holy Prophet about grape juice extractor" {{ARABIC TEXT}}1-/:`.01s- LSI OA-3 Ist.ry2:"...").h.11 (t t I Jo 4.'1.:12.11 j^...11j1.) Nc9 3s. (s;.11 '531:131)
' However, according to the other founding jurists the acts of mere preparation, not directly connected with the intended wrongful act, if not wrong full 'H by themselves, will not be punishable and punishment will be attracted only ;H if any step is taken towards the commission of the intended wrongful act.
39. For example, if a person made keys to open a lock of a house to commit theft or procured an arm with the intention to commit theft or killing, they are punishable for their wrongful acts under `Taazir' according td Malik and Ahmad. The situation in other schools of thoughts is different and the above acts are not punishable as such". In the above example if the person, having instruments of theft, was arrested just in the front of or on a side of the house intended to be burgled or if the person with gun was arrested while sitting in ambush on the way on which the specific person was expected to come, both of them may be punished for 'attempt' under Taazir in Islamic law though the ordinary law may not hold them guilty of attempting to commit the offences of theft or murder as the case. May be. In this connection Mawardi writes, that according to famous Shafie jurist Abu Abdullah Zubairi, "Taazir is compulsory for the person who was arrested near a house and has instruments of theft with him and his intention fOr theft is also proved." (A-Ahkamus Sultani, page 373). It may be mentioned here that the Islamic law does not recognize the concept of the "impossibility of attempt" as referred to by the House of Lords (See paragraph 26 above). It looks to the intent and the act of the wrongdoer and not to the circumstances that are there to defeat him.
When a person does what he intends to do but fails in achieving the intended result he cannot claim any credit and will be held responsible for his acts and deeds and it is only the punishment that may be reduced keeping in view the circumstances of the case. It will be seen that forcibly lifting a woman from her bed (paragraph 11) making a hole in the outer wall of the complainant ; concerned (paragraph 14), rubbing of male organ on t he entrance of vagina or putting finger in the private parts of a female (paragraph 23) under the ordinary law were held to be cases of attempt and duly punished. This Court, however, held otherwise in Yaseen v. State, though appellant was lying on the woman and was trying to make her naked inasmuch as marks of violence appeared on her person. The views exRressed by Aftab Hussain, C. J. In Shaukat v. State do neither fall in line with the above cases under the ordinary law nor are they reconciled with the Sharia. Again the bringing of a married woman to his place by the accused for sexual intercourse was not a mere preparation (paragraph 22). Similarly, getting on a sleeping woman in a train, trying to unbutton his trousers and preventing the woman from reaching the communication cord for help (paragraph 22) were acts of (,:;,..LA-.) going for beyond the acts of outraging her modesty which may be attracted on mere pinching or even pulling her garments. The American view appears to be much better.
40. Keeping in view, particularly the sexual offences, the position under the ordinary law is very unsatisfactory from the Islamic law viewpoint. There, in case of consenting opposite sexes it is no offence in private to undress and caress each other or play with private parts or kissing, hugging, lying on each other and even sexual intercourse unless the female is a minor or a married woman.
None of there acts are, however, permitted by the Islamic law and are heinous offences. Even the views expressed by this Court as noted in paragraphs 27-30 above, it I submitted with great respect, are not in accord with it. In the ordinary law there is no application of section 354, P. P. C. In respect of acts mentioned above if they are done in private by consenting parties. Again, in cases involving force or lack of consent the Courts have to confine themselves to the maximum punishment of only two years under section 354, P. P. C. Whether it be mere pulling `dopatta' of a woman or undressing her, kissing or hugging her or caressing her body or private parts or doing any other objectionable object, as long as there is no evidence to show that the offender had also undressed himself and was attempting to commit the sexual intercourse. Is it not an invitation to the bad characters or other desperados not to stop the less offensive stages and go to such, extremes which fall short of attempt ? The situation under the ordinary law thus encourages additional objectionable acts if the offender had committed a less offensive act in the beginning. In Islamic law each offensive act, attracts a distinct punishment and so the penalty is cumulative with the only restriction that it will not be equal to and shall be less than the penalty of the completed offence. The Islamic law thus fulfils the very/ object of law and acts as deterrent while the ordinary law, in the above-mentioned situation encourages the offender.
41.Applying the above Sharia principles to the case in hand we find that the appellants were rightly convicted under section 452, P. P. C. Which, though the starting point of the offence, yet was an independent offence. The appellants then disclosed their intention by words of mouth and proceeded to act on it by catching Ghulam Fatima and by pushing, pulling and endeavourting to take her out to satisfy their animal lust. Each one of those acts was wrongful and so culpable and punishable as attempt under section 18. Read with section 11 of Ordinance VII of 1979. However. As regards the petition for enhancement we do realize that though it was a detestable act yet keeping in view the age of the appellants and the fact that they were first offenders we do no interfere with the sentence of imprisonment but increase the fine to Rs, 20,000 each. In default of payment they shall suffer 2 years' R. I.. Each. Half of the amount if recovered shall be paid to the prosecutrix under section 544-A, Cr. P. C.