' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the Federal Shariat Court, dated 5-11-1986 whereby the conviction of the respondents Nos.-1 and 2 under sections 11 and 18 of the Hudood Ordinance (hereinafter referred to as the Ordinance) was set aside and they were convicted under section 354, P.P.C.
2. The facts, in brief, are that Mst. Sultan Bibi P.W.2 reported that 5/6 days prior to the occurrence, she was coming from Bhalla village to the outside fields for grazing cattle. The respondents Muhammad Ibrahim and Mansab came out from the bushes. Ibrahim caught hold of her by arms.
She got released herself and made scream on which both the accused dragged the complainant behind the sand dunes and forcibly untied her Shalwar. On alarm being raised by her, Muhammad Bilal and Khan Muhammad, residents of Bhalla who were working in the nearby fields came there.
On seeing them, the accused ran away from the spot. During the struggle, her shirt had torn. The trial Court convicted the respondents under section 11 of the Ordinance and sentenced them to imprisonment for life and fine of Rs,5,000 each or in default to undergo R.I. For 2 years and 30 stripes each. Each of them was also convicted under section 10(3)/18 of the Ordinance to suffer R.I. -for twelve and a half years. The sentences awarded to Ibrahim were ordered to run concurrently.
The benefit of section 382-B, Cr P.C. Was also given to the respondents. The respondents challegned their conviction before the Federal Shariat Court which set aside the conviction and sentence of both the accused under section 11 of the Ordinance. The conviction under section 10(3)/18 of the said Ordinance was converted into one under section 354, P.P.C. And the sentence was reduced to 18 months' R.I. And fine of Rs,2,000 or in default of payment of fine, to further undergo R.I. For three months each. In case of recovery of fine, Rs,2,000 were ordered to be paid as compensation to the complainant. The trial Court as well as the Federal Shariat Court have accepted the prosecution case against the respondents. Mst. Sultan Bibi has corroborated the statement of fact recorded in the First Information Report. P.W.5 Muhammad Bilal had witnessed the incident and supported the statement of the prosecutrix.
3. Leave to appeal had been granted to consider whether the case falls under section 18 of the Ordinance or the conviction recorded under section 354, P.P.C. Is legal. Leave was not sought against the acquittal of the respondents under section 11 of the Ordinance.
4. Mst. Sultan Bibi had appeared as P.W.2 and she had deposed that "Ibrahim accused caught me from arms but I released myself. Then both of them dragged me to the sand dunes at a distance of about forty karams when I raised alarm. Then Mansab accused caught me from arms. Ibrahim accused removed my Shalwar as well as his own. I then again raised alarm by which Muhammad Bilal and Khan Muhammad were attracted to the spot. Seeing them coming, the accused released me and went away towards south. My shirt was torn in the scuffle". P.W.5 Bilal deposed that "I alongwith Khan Muhammad was coming to my village Bala. When we reached near Chasma Link Canal, we heard screams. We rushed towards the cries and saw that Mansab accused had caught hold of Sultan Bibi and her Shalwar was removed. He further stated that "Mst. Sultan Bibi was lying on the ground and she was raising alarm. He also saw that the shirt of Mst. Sultan Bibi was torn".
5. The age of the girl at the time of recording the First Information Report was 10/11 years.
6. The reason which found favour with the Federal Shariat Court in converting the conviction of the respondents under section 354, P.P.C. Is as follows:-- "Now the question is whether the appellants can be said to have attempted to commit Zina with the child. In the F.I.R. Mst. Sultan Bibi has stated that she was made naked and laid on the ground, but she did not say that any of the appellants had also removed her Shalwar. She was, however, confronted with the relevant portion of the F.I.R. In which there was no mention of Ibrahim having removed her shalwar. Under this circumstance it is difficult to hold that the appellants intended to commit Zina with the child. In several cases of this nature we have held that the offender at the most may be said to have outraged modesty of the female, which is an offence punishable under section 354, P.P.C."
7. Section 354, P.P.C. May be reproduced hereunder:- "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."
8. The expression "outrage modesty" as contained in section 354, P.P.C. Has not been defined anywhere. The act of violence or mischief to the indignation or annoyance of a woman would constitute the offence mentioned in section 354, P.P.C. The actual intention of committing rape is not contemplated by section 354, P.P.C. There is a thin line between an "assault" under section 354 and an "attempt" as mentioned in section 18 of the Ordinance. It is always a question of fact to be determined on the material on record keeping in view the attending circumstances of a particular case. In Corpus Juris Secundum, Vol. 22, the definition and distinction of "attempt" have been described in sections 73 and 75 in the following words:- "S.73. An attempt to commit a crime may be defined as an act done in part execution of a criminal design, amounting to more tlian mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime. S.75. An attempt to commit a crime consists of an intent to commit it, performance of some act toward its commission, and failure to consummate its commission."
9. In "attempt" the accused commits some overt act towards achieving his object but cannot succeed due to interruption by some external facts and circumstances which arc not connected with the object of the accused. He fails to attain the object through some independent circumstance. An accused who has made certain movements in execution of completing his design but failed to consummate the substantive offence due to the intervention of certain facts the attempt is complete. If the attempt has succeeded the natural result would be that the offence charged would have been committed.
10. Learned counsel for the respondents has referred to Mst. Saiqa v. The State 1988 PCLIJI 2364 wherein certain observation has been made while granting bail to the accused. Such observation is confined to that case and it cannot be extended to any other case.
11. In Muhammad Khan v. The State 1984 SCMR 893, the intention of the accused was frustrated by arrival of prosecution witnesses on spot. The conviction under section 18 was maintained.
12. In Mureed Ahmad v. The State 1985 SCM R 997, it was observed that "a part of every attempt at rape may include preparation and/or molestation, but it does not mean that it was not attempt.
13. In Shaukat v. The State PLD 1982 FSC 179, according to the majority judgment, "attempt" means an intentional act with a view to attain a certain end but fails to consummate its commission because of the circumstances beyond the control of the offender. The words "any act" used in section 511, P.P.C. And section 18 of the Offence of Zina Hudood Ordinance, exclude the notion that the final act short of actual commission is alone punishable but this expression will include any one of those acts whether first or the last forming part of series of acts constituting attempt, if done with the necessary intention towards the commission of that offence.
14. In Abdul Majid v. The State 1973 SCM R 108, "ingredients necessary in an attempt to commit crime have been described as follows: (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 account of the circumstances beyond the control of the offender."
15. An assault with the intention of committing rape is not contemplated by section 354, P.P.C. An accused who has devised certain acts towards completing his design but cannot succeed due to the arrival of the prosecution witness, will be guilty under sectioii 18 of the Ordinance. In the present case, the facts established on record are thatt the girl was apprehended by the two respondents who caught hold of her by arms. She got herself released but the accused did not stop there. They dragged her to the sand dunes at a distance of about forty karams. One of the accused caught hold of the prosecutrix and the second removed her Shalwar. P.W. Bilal has stated that she was lying on the ground when he came to the spot after her alarm. Her Shalwar had been removed by the respondents. The two Courts have accepted the prosecution version. But for the timely arrival of the witnesses, the accused persons would have succeeded in their object. The modesty of the girl had been outraged on the first act of the respondents when one of them caught hold of her by arms. The subsequent acts of the accused were in furtherance of their common object to commit rape. These acts of the accused could not minimise the gravity of the offence. The additional circumstance is that in the struggle to save her from the clutches of the respondents, her shirt was also torn. These series of acts would constitute an offence under section 18 of the Ordinance. They had made attempts to commit rape on the person of Mst. Sultan Bihi. By no standard it can be said that all these acts only amounted to outraging the modesty of the girl. The case squarely falls under section 18 of the Ordinance therefore the order of the Federal Shariat Court is not sustainable in law. We allow this appeal and convict the respondents 1 and 2 under section 18 of the Ordinance.
As regards the sentence, the punishment provided under section 10(3) shall not he less than four years nor more than 25 years and if the punishment is one of imprisonment, the accused shall also be liable to punishment of whipping numbering 30 stripes. The punishment under section 18 extends to one-half of the longest term provided for that offence, or with whipping, not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments. The three punishments are provided in section 18 and such punishment may be awarded to an accused person under this section. No fine is provided in section 10(3). We have now to consider as to what would be the appropriate sentence in the present case. The sentence of 18 months has been awarded under section 354, P.P.C. We might have considerd the enhancement of the sentence under section 18 but apart from the fact that the fine has also been imposed against the respondents, they have already undergone the sentence imposed upon them. The date of the incident is 13-6-1984 and the Federal Shariat Court disposed of the appeal on 5-11-1986 and as per judgment of the Federal Shariat, the respondents had undergone their entire sentence and they must have been released in the year 1988. After the lapse of about 2-1/2 years, we do not consider it proper to enhance the sentence. Therefore, while convicting the respondents under section 18, we maintain the sentence already imposed upon them.
16. The appeal is accordingly disposed of.